Giustina Bros. Lumber Co.

National Labor Relations Board - Board Decisions

Aug 21, 1956

116 N.L.R.B. 700 (N.L.R.B. 1956)

700, DECISIONS, OF NATIONAL LABOR RELATIONS ,BOARD \^ O„
as meaning that the Glove Workers would prevent him, from obtaining employment,
with the Company because Kennedy was not a member of that Union 37 Kennedy
testified that the "whole crux" of the controversy was whether he had completed 12
weeks of continuous employment . This tends to corroborate McMaster 's version of .
their meeting, to wit, that the discussion centered about the question of whether or not
Kennedy had acquired permanent status. Thus, construing the conversation be-
tween Kennedy and McMaster in the light most favorable to the General Counsel's
position , its import is ambiguous , i. e., as to whether the subject of the discussion was,
union membership or employment status. I therefore find, even accepting Kennedy's
version of the meeting, that this single isolated incident does not establish by the.
necessary preponderance of the evidence that Kennedy or any other employee was
restrained or coerced by McMaster in the exercise of the rights guaranteed in Section
7 of the Act. Accordingly, I find that the General Counsel has failed to establish
any violation of Section 8 (b) (1) (A) of the Act.
CONCLUSIONS OF LAW
The Respondents have not engaged in any unfair labor practices within the mean-
ing of the Act.
[Recommendations omitted from publication.]
37 The General Counsel 's witnesses testified that the conversation between Kennedy and
McMaster took place on February 21, 1955 . The evidence shows that the Glove Workers
did not accept any layers -off into membership before February 25, 1955.
Giustina Bros. Lumber Co. and Local 2611, Lumber and Sawmill
Workers, AFL-CIO.' Case No. 36-C-4-6,33. August 91, 1956
DECISION AND ORDER
On September 9, 1955, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above -entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter , the Respondent filed,
exceptions to the Intermediate Report and a supporting brief, and the
General Counsel filed a brief in support of the Intermediate Report.
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 briefs , and the entire record in this
case, and hereby adopts the findings , conclusions ,2 and recommenda-
tions of the Trial Examiner.
As for the position taken by our dissenting colleague we disagree,
that the strikers should be found to have lost their employee status
' As the AFL and CIO merged subsequent to the hearing in this case , we are taking
notice thereof and amending the name of the Charging Union accordingly
s As Chairman Leedom agrees with the Trial Examiner that the Respondent unlawfully,
refused to bargain with the Union by virtue of the participation of its representatives in
the employees ' July 28, 1954 , "back-to-work" meeting , he deems it unnecessary to decide
whether the evidence also supports the Trial Examiner 's conclusion that the Respondent
unlawfully participated in prearranging that meeting
116 NLRB No. 89.
GIUSTINA BROS. LUMBER CO. 701
.because of any failure on their part to comply with the provisions of
Section 8 (d) of the Act. Insofar as any 8 (d) issue was raised, the
Trial Examiner found that it was limited to 8 (d) (4) and concluded
that under the Board's decision in Lion Oil Company 3 there was no
'merit in the contention. In its exceptions to the Board, the Respond-
ent did not take issue with the Trial Examiner's so limiting the 8 (d)
issue nor with his failure to consider that 8 (d) (1), (2), or (3) were
involved in the case. Also, the Trial Examiner stated that the Re-
spondent sought to justify its refusal to bargain because the employ-
ees were on strike. The Respondent excepted to this statement. Nec-
essarily, the Respondent thereby completely negated any reliance upon
Section 8 (d) (4). Consequently, we believe that any 8 (d) issue
that may have been raised before the Trial Examiner was thereafter
abandoned by the Respondent and the issue is not now before the
Board.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Giustina Bros.
Lumber Co., Eugene, Oregon, its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Threatening its employees with loss of their employee status
for engaging in lawful strike activity.
(b) Refusing to bargain collectively upon request with Local 2611,
Lumber and Sawmill Workers, AFL-CIO, as the exclusive bargain-
ing representative of all the employees at its sawmill and planing
operations in Eugene, Oregon, and its log dump and pond at Spring-
field, Oregon, excluding office and professional employees, guards, and
supervisors as defined in the Act, with respect to rates of pay, wages,
hours of employment, or other conditions of employment.
(c) Discouraging membership in the above-named labor organiza-
tion, or any other labor organization, by refusing to reinstate any
of its employees engaged in concerted activity as unfair labor prac-
tice strikers, or because of their union membership or activity, or by
discriminating in any other manner with respect to their hire or em-
ployment tenure, or any term or condition of their employment.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join the above-named labor organization
or any other labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid and
3 109 NLRB 680.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protection, or to refrain from engaging in any or all of such activities,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 2611, Lumber
and Sawmill Workers, ,AFL-CIO, as the exclusive representative of
all the employees in the above-described unit with respect to griev-
ances , wages, rates of pay, hours of employment, and other terms and
conditions of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Offer to employees who were on strike as of January 19, 1955,
as set forth in an appendix to the Intermediate Report, insofar as it
may not already have done so, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, or place them on a
preferential hiring list, and make them whole for any loss of pay or
other incidents of the employment relationship which they may have
suffered by reason of the Respondent's discrimination against them,
in the manner set forth in the section of the Intermediate Report en-
titled "The Remedy" dismissing, if necessary, any persons hired on
or after July 28, 1954, who were not in the Respondent's employ on
that date.
(c) Preserve and make available to the National Labor Relations
Board or its agents, upon request, for examination and copying, all
payroll records, social-security payment records, timecards, personnel
records and reports, and all other records necessary for an analysis of
the amounts of back pay due and the reinstatement rights of employees
in accordance with the terms of this Order.
(d) Post at its places of business in Eugene and Springfield, Oregon,
copies of the notice attached hereto marked "Appendix A." 4 Copies
of said notice, to be furnished by the Regional Director for the Nine-
teenth Region, as the agent of the Board, shall, after being duly signed
by an authorized representative of the Respondent, be posted imme-
diately upon receipt thereof and be maintained for a period of sixty
(60) consecutive days thereafter in conspicuous places, including all
,places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
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."
i
GIUSTINA BROS. LUMBER CO. 703
(e) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
MEMBER RODGERS , dissenting :
The facts of this case show, I believe, that the Respondent's employ-
ees did not comply with the requirements of Section 8 (d) of the
Act before engaging in strike action against the Respondent. They
consequently lost their status as employees of the Respondent.-' Be-
cause the decision of my colleagues in this case is predicated upon their
view-that the strikers retained the status of employees, I am impelled
to note my dissenting position.
The Union, Local 2611, Lumber and Sawmill Workers (affiliated
with the Willamette Valley District Council of Lumber and Sawmill
Workers), and the Respondent were parties to a collective-bargaining
agreement which became effective on May 8, 1953. Article XIII of
the agreement provided :
This agreement terminates on 1 April, 1954, but shall automati-
cally extend from year to year unless either party hereto shall
have given written notice to the other party at least seventy-five
(75) days preceding April 1 of any year of its intention to modify,
revise , adjust, or terminate this agreement, specifying in such
notice the provisions that it desires to modify, revise, or adjust,
or its desire for termination.
'The agreement also contained the following clause (article VIII) :
Wages shall continue subject to the right of either party to
request a general wage change by giving the other party written
notice of its desire for such general wage change. Negotiations
shall commence within fifteen (15) days from the date the notice
is received.
L In their opinion my colleagues assert that there is no 8 (d) issue before the Board in
this case I do not agree In its amended answer, the Respondent asserted that the
strike of its employees was an unfair labor practice within the meaning of the Act. In its
brief to the Trial Examiner , the Respondent asserted that the strike was unlawful because
it occurred during the contract term ; and, in support of this statement , the Respondent
paraphrased the language of Section 8 (d) (4). In my opinion, although the Respondent
may not have raised the matter with technical nicety, its answer and brief, construed
together , without question raised an 8 (d) (4) issue and, I think , also raised an 8 (d)
issue generally
Nor do I agree with my colleagues ' view that the Respondent subsequently abandoned
any 8 ( d) issue it had raised before the Trial Examiner . The Respondent specifically
excepted "To the finding [ of the Trial Examiner ] that Respondent did not seriously
present the issue of an unlawful strike. " It also excepted " To the conclusion [ of the Trial
Examiner ] that Respondent sought to justify a refusal to bargain upon the existence of
a strike." And , in its brief to the Board , the Respondent argued that it considered the
contract in full force and effect and cited in support of this statement the court decision
in the Lion Oil case ( Lion Oil Co. v . N L. R. B., 221 F 2d 231 ( C. A. 8), which case
squarely involved the construction of Section 8 (d) of the Act. Accordingly , although,
agaip,vthe Respondent may not have proceeded with technical nicety, I think it is clear
that it did not abandon its position as to Section 8 (d) of the Act.
`704 DECISIONS OF, NATIONAL LABOR :RELATIONS BOARD
During the 'contract year 1953=54, neither the Uriion nor the' Re-
spondent gave notice under article XIII' of an intention to modify,.
revise, adjust, or terminate their agreement.'
On February 10, 1954, however, the Union wrote to the Respondent
as follows :
Please be advised that the Willamette Valley District Council
wishes to notify you that we wish to; open negotiations for
an increase in wages for all of your employees who are repre-
sented by our union.
We will appreciate the opportunity to discuss this mater with.
you or your representatives at an early date. •
Pursuant to this letter and a subsequent exchange of correspondence
relating in part to the authority of the District Council to act on
behalf of the Union, the parties engaged in bargaining with respect
to the Union's requested wage increase. No agreement was reached.
On June 21, 1954, the Union, in furtherance of its wage demands,
called a strike against the Respondent, and the Respondent's em-
ployees struck and picketed the Respondent's operations. This strike,
clearly economic in origin, continued until January 19, 1955.
As neither the Union nor the Respondent gave notice under article-
XIII 'of their agreement of intent to modify or terminate the agree-
ment, it is clear, and the General Counsel has so conceded, that the
agreement was automatically extended on April 1, 1954, for another
year ending on April 1, 1955. It is also clear that the' question of
whether the Union satisfied the requirements of Section 8 (d) of the
Acts turns on the legal effect of the Union's letter of February 10,
1954, to the Respondent.
It would appear that the Union's letter of February 10, 1954,
was intended as notification, under article VIII of the, agreement,
9 Section 8 (d) of the Act provides in pertinent part •
For the purposes of this section, to bargain collectively is the performance of the'
mutual obligation of the employer and the representative of the employees to meet at
reasonable times and confer in good faith . . .: Provided, That where there is in
effect a collective-bargaining contract covering employees in an industry affecting
commerce, the duty to bargain collectively shall also mean that no party to such
contract shall terminate or modify such contract, unless the party desiring such
termination or modification-
(1) serves a written notice upon the other party to the contract of the proposed
termination or modification sixty days prior to the expiration date thereof, or in
the event such contract contains no expiration date, sixty days prior to the time
it is proposed to make such termination or modification :
4 • R #
*
4
(4) continues in full force and effect, without resorting to strike or lockout, all
the terms and conditions of the existing contract for a period of sixty days after
such notice is given or until the expiration date of such contract, whichever occurs
later •
e * s • s s s
Any employee who engages in a strike within the sixty-day period specified in
this subsection shall lose his status as an employee of the employer engaged in the
particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as
amended, but such loss of status for such employee shall terminate if and when he
is reemployed by such employer.
'GItTSTINA BROS. 'LUMBER CO. 705
of the Union's desire to bring about a general wage change. It is
clear, however, that this letter failed to satisfy the requirements of
Section 8, (d) (1), which specifies that notice of modification be served
-either 60 days before the "expiration date" of a bargaining agree-
ment, or, where the agreement does not contain an "expiration date,"
'60 days before it is "proposed" to make the modification. Accord-
ingly, if at the time the February 10 letter was written the "expira-
tion date" of the agreement herein is taken to be April 1, 1954, then
it is evident that the notice was given only some 51 days before such
"expiration date," and thus was not a timely notice. If, on the other
hand, it is said that when the letter was written that agreement con-
tained no "expiration date," then the letter was defective as an 8 (d)
(1) notice because it did not specify when the Union "proposed"
-to make the wage modification it was seeking.
- It also is evident that the Union failed to satisfy the requirements
'of Section 8 (d) (4) before engaging in strike action against the
Respondent. As indicated above, the parties' agreement renewed itself
on April 1, 1954. Consequently, when the Respondent's employees
went on strike on June 21, 1954, there was in effect a bargaining agree-
. ment having an "expiration date" of April 1, 1955.1 By its terms
-Section 8 (d) (4) required the Respondent's employees to wait until
such later date before striking, and their failure so to do caused them
to lose their status as employees.
The strikers' loss of status as employees has rendered academic all
other issues raised by the complaint against the Respondent. I would
therefore dismiss that complaint, and would not issue an order against
the Respondent. -
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
7In the recent Lion Oil Company case, the Board majority said • "The `expiration date'
of a contract containing an automatic renewal clause-i e , an agreement subject to
modification or termination upon notice at fixed annual periods-is the earliest date on
which modification or termination could be effective. We think the same rule applies to
a contract for a fixed term providing for a wage reopening at a prescribed period " 109
NLRB 680, 684
As article VIII of the agreement herein did not provide for a "wage reopening at a
prescribed period"-that article permitting a wage reopening at any time during the
agreement 's term-it cannot be said that under the majority view in the Lion Oil case
the 60-day waiting period contemplated by Section 8 (d) (4) is to be computed from the
time that the Union gave its wage reopening notice on February 10, 1954.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
405448--57-vol, 116-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with loss of their employee
status for engaging in lawful strike activity.
WE WILL NOT discourage membership in Local 2611, Lumber
and Sawmill Workers, AFL-CIO, or any other labor organiza-
tion, by a refusal to reinstate any of our employees because of their
union membership or activity, or by discrimination against them
in any other manner with respect to their hire or employment
tenure, or any term or condition of their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-org"a-
tion, to form labor organizations, to join or assist Local 2611,
Lumber and Sawmill Workers, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of
their own free choice, or to engage in other concerted activity for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
WE WILL bargain collectively, upon request, with Local 2611,
Lumber and Sawmill Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining unit described below,
with respect to rates of pay, hours of employment, or other condi-
tions of employment, and if an understanding is reached, embody
such understanding in a written and signed agreement. The bar-
gaining unit is :
All employees at our sawmill and planing operations in Eugene,
Oregon, and the log dump and pond located at Springfield,
Oregon, exclusive of office and professional employees, guards,
and supervisors.
WE WILL offer all of our employees who were on strike on
January 19, 1955, immediate and full reinstatement to their
former or substantially equivalent positions, displacing, if neces-
sary, any new employees hired after July 28, 1954. If, after such
displacement, there are not enough positions for all such em-
ployees, the available positions will be distributed among them in
accordance with a seniority system or other nondiscriminatory
arrangement heretofore applied in the conduct of our business.
Any of our employees, previously on strike, for whom employment
is not immediately available will be placed upon a preferential
hiring list, priority on such list being determined by the,; seniority
system or other nondiscriminatory practice heretofore applied in
the conduct of our business. Thereafter, such employees will' be
offered reinstatement in accordance with the list, as positions
GI[56TINA BROS. LUMBER CO. 707
become available , and before other persons are hired for such
work. Such reinstatement will be without prejudice to their
seniority and other rights and privileges.
WE WILL make our employees whole for any loss of pay each
of them may have suffered as a result of our discriminatory re-
fusal to rehire any of them on January 19, 1955, after their un-
conditional offer to return.
All of our employees are free to become or remain, or refrain from
'bkoming or'remtiiY}jno-membdrs of Local 2611, Lumber and Sawmill
Workers, AFL-CIO, or any other labor organization, except to the
-extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act. We will not discriminate
in regard to hire or tenure of employment, or any term or condition
of employment, against any employee because of membership in or
activity on behalf of any labor organization.
GIUSTINA BROS. LUMBER CO.,
Employer.
'Dated---------------- By----------------------------- -__------
(Representative ) (Title)
This notice must remain posted for 60 days from its date, and must
not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an original charge and amended charge, each duly filed and served, the
General Counsel of the National Labor Relations Board , in the name of the Board,
.caused the Regional Director for its Nineteenth Region , at Seattle , Washington, to
issue a complaint and notice of hearing on December 20, 1954 , against Giustina
Bros. Lumber Co., designated as the, Respondent in this report , under Section 10 (b)
of the National Labor Relations Act, as amended , 61 Stat. 136. The Respondent was
charged therein with the commission of unfair labor practices under Section 8 (a)
.(1) and ( 5) of the statute . Copies of the aforesaid complaint, the notice of hearing,
and the applicable charges were duly served upon the firm involved . Thereafter,
however, upon a second amended charge duly served under the statute , the General
Counsel caused the issuance of an amended complaint by the Regional Director on
April 19 , 1955; copies of the amended complaint and the second amended charge
were, again , duly served upon the Respondent.
The complaint , as amended , alleged in substance that : ( 1) Local 2611 of the
Lumber and Sawmill Workers, AFL, a labor organization-to be designated as the
Union in this report-was entitled , at' all material times, to act as the exclusive
bargaining representative of the Respondent 's employees within a unit appropriate
for the purposes of collective bargaining , and that it is still so entitled ; ( 2) strike
action was instituted against the Respondent by the Union , on or about June 21,
1954 , for economic objectives ; ( 3) the Respondent , between July 28, 1954, and
September 2, 1954, undertook certain action which interfered with, restrained, and
coerced its employees in the exercise of rights statutorily guaranteed ; (4) certain
aspects of the Respondent 's conduct , as set forth, reveal its failure and refusal to
bargain in good faith with the Union as the exclusive representative of its employees
in a unit appropriate for the purposes of collective bargaining ; ( 5) the Respondent's
course of conduct converted the Union 's strike action into an unfair labor practice
strike, and prolonged it; and (6) the union , on January 19, 1955 , unconditionally
requested the Respondent to reinstate certain named strikers immediately, and the
708 DECISIONS OFNATIONAL LABOR RELATIONS BOARD
Respondent refused,, and has continued to refuse, to reinstate these employees to.
their former, or substantially equivalent, employment. This course of conduct, it
is alleged, involved a refusal on the part of the Respondent to bargain in good
faith, discrimination in regard to the hire and employment tenure of its striking
employees to discourage union membership, and interference, restraint, and coercion
directed to the aforesaid employees.
'The Respondent's answer-as filed at the outset of the hearing, without objection,
and subsequently amended-admitted the jurisdictional allegations of the complaint
and the General Counsel's description of the unit alleged to be appropriate for the
purposes of collective bargaining. The status of the Union as a "collective bargain-
ing representative" of the Respondent's employees within an appropriate unit, prior
to June 21, 1954, was conceded; the answer, however, placed in issue the alleged
status of the Union as the exclusive bargaining representative of the employees in a
unit appropriate for the purposes of collective bargaining on or after June 21, 1954,
when the Union's economic strike began. The allegations of the amended com-
plaint with respect to the Union's institution of strike action were admitted. The
Respondent, however, denied the commission of any unfair labor practices, as
charged by the General Counsel, and specifically denied that the course of conduct
attributed to it in the amended complaint had converted the Union's strike for
economic objectives into an unfair labor practice strike, which was thereafter ex-
tended and prolonged until its termination on January 19, 1955, by the labor or-
ganization. The Respondent admitted a refusal to reinstate certain persons to their
former employment, on or after the indicated date, but denied every other aspect
of the General Counsel's allegation in this connection. (As issued and served, the
amended complaint had listed 133 employees allegedly denied reinstatement by the
Respondent, after the Union's unconditional request on January 19, 1955, for the
restoration of their employment status. At the hearing. 3 names were stricken
from the list, upon the General Counsel's motion, and 2 names were added. The
Respondent made no objection; its answer may be taken as a denial of liability
with respect to the individuals named in the last amendment.)
By way of affirmative defense, the Respondent alleged, upon various grounds,
that a question existed, after July 15, 1954, as to whether the Union still repre-
sented a majority of the Respondent's employees within the unit conceded to be
appropriate for the purposes of collective bargaining. In addition, the Respondent
alleged that the strike action sponsored by the Union had involved a breach of
the labor agreement then in effect between the firm and the labor organization, that
the Respondent had then taken steps to terminate the agreement, and that the
Union's action constituted an unfair labor practice within the meaning of the Act,
as amended.
Pursuant to notice, a hearing was held before me, as the duly designated Trial
Examiner, at Eugene, Oregon, on May 9-11, 1955. Each of the parties was repre-
sented by counsel. Each was afforded a full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to the issues. At
the outset of the case the General Counsel moved to strike certain allegations em-
bodied in the Respondent's affirmative defense, and further moved that it be required
to make certain portions of the affirmative answer filed more definite and certain.
The motion to strike was denied. A decision with respect to the motion that the
Respondent's affirmative answer be made more definite and certain was deferred,
in anticipation of an amended answer to be filed; upon its receipt, however, the mo-
tion was not pressed, and the record fails to reveal its disposition. (For the record,
and in order to assure its completeness in this connection, the motion is now denied.)
At the conclusion of the testimony, the parties were advised of their right to argue
orally upon the record, and to file briefs or proposed findings and conclusions; oral
arguments were waived, however, and the parties indicated their intention to file
briefs. The briefs have been received and considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Giustina Bros. Lumber Co., is an Oregon corporation engaged
in the processing of lumber and lumber products, with its principal offices and
place of business in Eugene, Oregon. In the course of its business, the Respondent
produces and ships in commerce products valued in excess of $100,000 annually,
among the several States of the United States other than the State of Oregon.
The Respondent has conceded, and I find, that it is engaged in commerce within the
meaning of the Act, as amended. In the light of the available evidence, and in,
GIUSTINA BROS._.LUMBER CO.,3.6,.r 709
accordance. with the Board's newly established policy (see Jonesboro Grain Drying
Cooperative, 110 NLRB 481) 1 find that the assertion of the Board's jurisdiction in
this case would be warranted to effectuate the objectives of the statute.
H. THE LABOR ORGANIZATION INVOLVED
Local 2611 of the Lumber and Sawmill Workers, AFL, to be designated as the
Union in this report, is a labor organization within the meaning of Section 2 (5)
of the Act, as amended, which admits employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Background
There is a suggestion, in the record, that the Union, or a sister organization, may
have represented the Respondent's mill and pond employees since 1938, and that it
may have been recognized as their representative, by the Respondent, since that date.
Whatever .the situation may have been from 1938 to 1943, however, the record with,
respect to more recent years is clear. Between March 31, 1943, and June 21, 1954, I
find that the Respondent-recognized and dealt with the Union, under successive trade
agreements, as the "sole" and exclusive representative of its employees in a bargain-
ing unit defined by stipulation as follows:
All employees at the Respondent's sawmill and planing operations in Eugene,
Oregon, and the log dump and pond located at Springfield, Oregon, excluding
office and professional employees, guards, and supervisors as defined in the Act.
As of June 20, 1954, these employees were 220 in number. The most recent revi-
sions of the trade agreement executed for the benefit of the employees became
effective on May 8, 1953; the agreement remained in force until April 1, 1954,
and was automatically extended to April 1, 1955, by virtue of the failure of either
party, apparently, to give written notice to the other, at least 75 days prior to its
indicated terminal date, of any intention with respect to its modification, revision,
adjustment, or termination.
B. The contract
Under article II of the agreement, the Union undertook to elect and maintain a
plant committee to represent the employees, and the Company undertook, recipro-
cally, to appoint and maintain a committee as its representative. The parties agreed
that these committees would meet "to analyze and adjust all complaints arising out
of the collective bargaining relationship" between them. In the event of any in-
ability on the part of the plant committee to adjust a "grievance" under the contract,
it was accorded the right to call upon representatives of the Union and/or repre-
sentatives of its hierarchical superiors, the Willamette Valley District Council, the
Northwest Council of Lumber and Sawmill Workers and the United Brotherhood
of Carpenters and Joiners of America, for assistance. The agreement went on to
provide that if any grievance could not be adjusted through these representatives,
a "joint board" should be created, ad hoc, with three members to be named by each
contracting party; the joint board, under the contract, would be required to submit
a "proposal" for the settlement of the dispute which had led to its creation.
Additionally, under article II of their agreement, the parties specifically estab-
lished the procedure to be utilized for the adjustment of "employee grievances" as
contractually defined. The contract provided, inter alia, for the submission of such
grievances, in written form, to the Respondent, within certain specified time limits,
and for the submission of a copy to the plant committee previously designated.
Although the procedure to be followed with respect to "employee grievances" after
their submission was not contractually detailed, the agreement revealed an obvious,
intent that the plant committee and the company committee should meet to discuss
the grievance; it provided, for example, that any employees involved in a grievance
"will" attend such meetings.
Article IX of the agreement dealt with strikes and lockouts. Its provisions in,
this connection read as follows:
The Company and the Union agree that the grievance procedures specified
hereinabove in Article II are adequate to provide a fair and final determina-
tion of all grievances arising under the terms of this agreement. Therefore,
during the life of this agreement no strike shall be caused or sanctioned by
the Union or any of its members and no lockouts shall be entered upon by
the Company until every peaceable method of settlement of the difficulties
710 DECISIONS OF NATIONAL LABOR RELATIONSc,BOARD
involved, as provided hereinbefore in Article II, shall have been tried and the
parties hereto have been unable to resolve their differences.
Under the agreement , if unable to reach a mutually satisfactory solution of any issue
after the exhaustion of the contractually established grievance procedure , each party
was required to provide the other, within specified time limits, with a written state-
ment of its position in the dispute; upon the exchange ofthete statements, the party
desirous of 'engaging in a strike or lockout was required to give 5 days ' written
notice of its desires in that regard , and a written statement specifying in detail its
current position on the issues in controversy . The party receiving such a notice
and specification was required to furnish anew a written statement of its position
on the matter in dispute , at the time of its receipt of the notice . In the event of
any violation of these contractual provisions, by a "strike, work stoppage or in-
terruption or impeding of work" in the Respondent 's plant, the agreement pro-
vided that no grievance should be discussed or processed for the duration of the
violation . The Union, under the agreement , was contractually obligated to en-
deavor to secure a return of any strikers to work, in order to facilitate a peaceful
settlement of the dispute in accordance with contractually established procedures,
and the Respondent's reserved right to discipline the employees involved in any
violation of the agreement in this respect was recognized . Article IX concludes
with a commitment , however, that union employees shall, at no time, be required
to act as strikebreakers.
With respect to its termination , as previously noted , article XIII of the agreement
provided for lapses on the first of April in 1954 and subsequent years, subject to
its automatic renewal from year to year, however, in the absence of written notice,
within a given time limit, with respect to the desire of either party to modify,
revise, adjust , or terminate their contractual relationship.
'Within the limits thus established, with respect to termination, article VIII of the
agreement also contained a specific provision with respect to the renegotiation of
wage rates. In this connection, the agreement provided that:
Wages shall continue subject to the right,of either party to request a general
wage change by giving the other party written notice of its desire for such
general wage change. Negotiations shall commence within fifteen ( 15) days
from the date the notice is received.
There was no provision in the agreement, as revealed by the present record, calcu-
lated to define , specifically , the relationship between such wage negotiations and the
procedure established for the analysis and adjustment of "complaints" arising out
of the collective-bargaining relationship, or the settlement of grievances. Nor does
analysis reveal any definite connection between a possible impasse or "deadlock"
on wage issues and the contractually established procedure, previously noted, with
respect to the agreement's modification, revision, adjustment, or termination.
C. The collective-bargaining relationship
At all times material, the Respondent was a member of the Willamette Valley
Lumber Operators Association, to be designated as the Association in this report.
Insofar as the record shows, it still holds Association membership. This organi-
zation, as the evidence shows, functions under Oregon law as a nonprofit corpora-
tion. Its membership is limited to individuals or business enterprises engaged in a
forest products industry. On the basis of a stipulation by the parties, it is possible
to infer, and I do infer, that the Association exists, at least in part, to serve the
interests of its membership in labor relations matters. From time to time, as the
stipulation shows, members of the Association may delegate limited authority to a
committee, drawn from their number, to negotiate with the bargaining agents of
their respective employees. According to the labor relations director of the Re-
spondent, whom I credit in this connection, the firm has, in the past, conferred such
limited authority upon the Association or an Association committee; these grants
of authority have not encompassed any power to bind the firm. Nor have they been
continuing grants; on each occasion, as required, the Association has been separately
authorized to act for the Respondent Employer.
The Union, at all material times, was affiliated with the Willamette Valley Dis-
trict Council of Lumber and Sawmill Workers, previously noted, to be designated
as the District Council in this report; the record reveals that it has maintained that
affiliation. This organization has been identified for the record, in turn, as an
unincorporated association of local labor organizations, chartered by the United
Brotherhood of 'Carpenters and Joiners of America; at all times material, I find,
GIUSTINA BROS. LUMBER CO. 711
it has been engaged in the promotion and protection of the interests of employee
members of its constituent local unions. Specifically, I find, it has represented the
Union and its other constituent locals in labor disputes and collective- bargaining
negotiations with Association committees, as previously noted, and various Asso-
ciation members and other lumber industry employers.
There is testimony in the present case that authority to negotiate with the Asso-
ciation; its member firms, and- other lumber industry employers in the Union's
behalf, with respect to wages specifically, had been given to the District Council in
1948 pursuant to the formal instructions of the union membership; witnesses con-
nected with the Union testified, without contradiction, that its grant of authority had
not been limited in duration, and that it was still effective at the time of the events im-
mediately involved in this case. The record shows, in this connection, that the
Union, at its meeting of February 4, 1948, had authorized the Union's secretary
to notify the District Council of its desire that the Council continue negotiations
with the operators for a wage increase, in excess of the sum embodied in a pending
offer. Pursuant to these instructions, I find that the Union's recording secretary
had, on February 5, •1948, advised the Willamette Valley District Council that it
was "instructed" to continue negotiations for "further increases" in wages. Copies
of his letter may have been sent, also, to firms under contract with the Union; as
to this, however, the record is not entirely clear. Although the motion adopted by
the Union, previously noted, and its letter would seem to have been limited, in their
context , to a grant of authority with respect to negotiations for a 1948 wage in-
crease only, the representatives of the Union and the District Council apparently
cbnStrue them as an indefinite grant of authority to the Council, at least with re-
spect to the negotiation of general wage issues. Such a construction, when shared
by the purported principal and agent involved, would seem to be immune to chal-
lenge, at least on the part of a stranger to the relationship. I find, therefore, that
the District Council was, at all material times, the designated agent of the Union
and its membership, in the wage negotiations now to be noted.
D. Preliminary negotiations
On February 10, 1954, Eldon Kraal, the executive secretary of the District Coun-
cil, dispatched a form letter to the Respondent under article VIII of the Union's
agreement with the firm. It read as follows:
Please be advised that the Willamette Valley District Council wishes to notify
you that we wish to open negotiations for an increase of wages for all of your
employees who are represented by our union.
We will appreciate the opportunity to discuss this matter with you or your
representatives at an early date. [Emphasis supplied.]
Copies of the same letter appear to have been sent to a number of other Willamette
Valley lumber operators under union contract. I so find.
The testimony of Executive Secretary Kraal establishes, without contradiction,
that approximately 79-80 operators maintained contractual relations with constituent
locals of the District Council, at the time, and that all were served with wage demands.
In a letter dated February 20, 1954, the District Council was advised by the
Respondent that its letter of February 10 had been received. The firm's response
went on to declare, however, that the District Council had no status as the "bar-
gaining agent" of its employees, with authority to open negotiations on any sub-
ject. In reply, on March 10, 1954, the Respondent was advised by letter-over
the signature of Leland James Howden, the Union's financial secretary and busi-
ness agent-that the District Council had been authorized by the Union to "open
and negotiate" wage issues in its behalf; that the Council was still authorized to do
so; and that it would continue to hold such authority in the future in the absence of
any contrary indication on the Union's part. Howden expressed the hope, there-
fore, that the Respondent would, in the near future, enter into negotiations with the
District Council in regard to the wage issue.'
On April 9, 1954, the executive secretary of the District Council addressed an-
other form letter to the Respondent-and presumably to various other employers-
calling attention to the Council's earlier February letter as one in which that
I There is a suggestion, in the record, that various other lumber operators in the
Willamette Valley, upon receiving the District Council's letter of February 10, had ex-
pressed their doubts, as the Respondent had, with respect to the authority of the Council
to open negotiations on the wage issue. Notes similar to the Union's letter of March 10,
previously cited, were sent, I find, to a number of employers.
_C
712. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization had "requested a meeting" with the firm or its representatives to dis-
cuss the matter of a wage increase for all of the employees the Union represented.,
In the absence of any negotiations prior to April 9, the Respondent, among others,.
was advised that its attitude had led the Council to conclude that it was involved
in a refusal to bargain in good faith with authorized union agents. Again, on.
behalf of the District Council, Executive Secretary Kraal requested that he be given
an opportunity to meet and discuss the matter of a wage increase at an early date..
Subsequently, on April 13, 1954, the Respondent dispatched a letter, to the Dis-,
trict Council signed by Sam E. Hughes, its labor relations director. The letter
read as follows:
We have your letter of April 9, 1954. We fail to find in your letter of
February 10, 1954, a request, as alleged, for a meeting to discuss a wage increase
for our employees.
You are hereby notified that we are authorizing a committee of Willamette'
Valley Lumber Operators Association to represent us, until further notice,
in the discussions contemplated by your letter. You are further notified that
the Association's committee is not authorized to reach any agreement binding'
upon us and that conclusions reached jointly by it and the authorized repre-
sentatives of our local union are to be submitted to us for consideration?
Thereafter, on April 28, 1954, and possibly as a result of this letter, negotiations
between an Association committee and the Council with respect to the wage issues,
then in controversy began.
At the time, I find, Natale Bernard Giustina, the Respondent's president and gen-
eral manager, was a member of the Association's board of directors-and had served
as one for 5 or 6 years. Sam E. Hughes, the Respondent's labor relations direc-
tor, was appointed to the Association's negotiating committee; on April 28, 1954,
he was a member of the group which met with the District Council's representatives,
as noted.
E. The prelude to the strike
Various references in the record suggest that the negotiations thus initiated by the
Association and the District Council , with respect to the wage issue , were part of a
larger series involving other operator associations , other organizational units of the
Lumber and Sawmill Workers, AFL, the International Woodworkers of America,
CIO, and various employers whose employees were represented by one or another of
these "rival" labor organizations .3
As of April 26, 1954, I find, the Respondent had instituted a second shift at its
Eugene sawmill and planing mill. And some questions arose, apparently, with re-
spect to the "seniority" and employment rights of employees transferred or assigned
to the second shift by the firm, and the disposition to be made of their claims. with
respect to further employment in the event of a termination of the shift.4 On
June 7, 1954, while the wage negotiations were pending, representatives of the
Respondent and the Union met, at the request of the latter, to discuss certain griev-
ances and the second-shift problem. The Union, as the record shows, had previously
presented a prepared "Memorandum of Understanding" as its proposal with respect
to the second-shift issues There is some evidence in the present record that the
Union's proposal was discussed. No information with respect to its fate, how-
ever, is available. (Hughes, as a witness, took the position that the proposal be-
came "moot" when the Respondent reached its decision, later, to discontinue
the second shift, and that the firm, therefore, never had to discuss it.)
a A copy of the letter quoted appears to have been sent to the Association. I so find.
Insofar as the record shows, this communication constituted the only objective evidence
available to the Association or any of the parties with respect to the Respondent's designa-
tion of the operators' group to represent it in the 1954 wage negotiations.
sAt the time, I find, it was a matter of common knowledge in the Pacific Northwest
that wage issues in the lumber trade were being negotiated on an "industry-wide" basis,
and that practically every employer in the trade, privy to a labor agreement with an AFL
or CIO organization, had been confronted with a wage demand These negotiations were
extensively discussed in the local press and elsewhere. I find it appropriate, therefore, to
take official notice of the fact that the Respondent's indirect involvement with the Union,
as previously indicated, constituted a part, only, of the larger series of negotiations, to all
intents and purposes 'industry-wide" in scope
* The testimony of the firm's production manager establishes that the second shift
operation required almost as many men as the established first shift.
5 The evidence establishes, beyond dispute, that this memorandum had been grounded in
a union acknowledgment that the second shift would be on a "temporary" basis . I so find
GIUSTINA BROS. LUMBER CO . 713
In the course of the discussion , however, the Union 's demand with respect to a
wage increase also appears to have been mentioned . Sam Hughes, I find, attempted
to explain at length why the Respondent would not be able to meet the Union's de-
mand; the record , however , gives no indication of any reply by a union spokesman.
And at some point , apparently , Natale Giustina raised a question as to whether the
union negotiators were free to discuss the wage issue. He was advised that they
could not do so, since their authority to negotiate with respect to such matters had
been "given" to the District Council of their organization . Giustina was also taxed, I
find, with his own inability to negotiate . Upon his declaration that he was "ready,
willing and able" to negotiate , the Respondent 's president was advised by a union
spokesman that he had given authority to negotiate the wage issue to the Association,
and that he could do nothing about it. The testimony of Natale Giustina with re-
spect to his reply , which I credit , reads as follows:
... I said, "The hell I can't. The association doesn't tell me or any other op-
erator what we have to do," and I repeated , "All I have to do is pick up the
telephone and tell Mr. Metzger of the association that he no longer represents
me, and that I am at this moment , ready, willing and able to negotiate ," if they
wanted to talk.
The record reveals no response on the part of a union spokesman , however , beyond
the possible reiteration by Business Representative Howden of his earlier statement
that the Plant Committee of the Union could not undertake negotiations with re-
spect to the wage issue. Nor is there any indication in the record of any overt action
by the Respondent calculated to effect an actual revocation of the Association's
authority to negotiate on wages for the firm.
On June 11, 1954 , according to the undisputed testimony of Sam Hughes, which
I credit in this connection , Business Representative Howden , in a further conversation
at the Respondent 's plant, reiterated the Union 's position with respect to its inability
to negotiate the wage issue directly. ( In substance , I find , Hughes was advised that
if the Respondent persisted in its attempt to negotiate the wage issue with the Union's
plant committee , without regard to the District Council 's "right" to negotiate such
questions , there might be a strike prior to the deadline previously announced.)
Thereafter, on June 17, representatives of the District Council and the Association
met to renew negotiations with respect to the wage issue . Hughes, as a member of
the Association committee , was present . The record is silent , however , with respect
to the discussion which then eventuated.
On the 20th , Natale Giustina was visited by Howden, in his capacity as a District
Council emissary ; he was asked if he wished to make a wage offer which could be
reported to the Council , and replied that there would be none . This appears to
have ended , for the time, direct negotiation between the Respondent and any union or
Council representatives in regard to the wage issue .6
F. The strike
On June 21 , 1954 , the Union undertook strike action against the Respondent.
Picket lines were established at the premises of the Respondent in furtherance of the
Union's wage demand . Insofar as the record shows, the pickets appear to have been
orderly, and the picketing appears to have been peaceful, at all times . No contrary
contention has been made.
The record shows that the strike at the Respondent 's plant constituted part of an
"industry-wide" strike , so-called , which involved every firm in the Pacific Northwest
lumber industry under contract with an AFL or CIO affiliate , exclusive of any firms
which had settled prior to the strike deadline on some basis acceptable to the particular
labor organization representing their employees . I so find.
On June 28 , at the instance of the Respondent , a conference was held with various
union representatives at the firm's Eugene plant . The record establishes that the
Respondent was motivated by a desire to ascertain the wishes of the Union and its
employees in regard to the deduction of "hospitalization dues" for the month of July
from the final prestrike paychecks of the employees , then in the process of prepara-
tion. An agreement that such hospitalization premiums might be withheld appears
to have been readily reached. Business Representative Howden , I find , then de-
clared that he would be willing to communicate a wage "offer" to the District Council
9 There were additional negotiations , I find, between the Council and the Association
committee on July 13 and August 4, 1954 . Despite the protestations of President Glustina
as to the ease with which he could terminate the Association 's status as his representative,
the record establishes that Hughes sat as a member of the Association 's committee on
each of the occasions noted.
714 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD
of his organization . In reply, however, Natale Giustina announced that there would
be no offer, except for a statement that the Respondent would be ready and willing
to resume operations on the basis of the wages and working conditions in effect when
the strike began. Howden indicated that the District Council would not find such
an offer acceptable. As the conference broke up, President Giustina, I find, asked
Howden if the Union's contract with the Respondent was still in force, and Howden
replied in the affirmative. On this note the discussion ended.?
On or about July 24, 1954, about 35 nonsupervisory employees of the Respondent
met at the home of one of their number, to discuss a petition that the Union call a
special meeting and undertake action to have its bargaining rights with respect to the
wage issue "returned" by the District Council; in the event of a failure to achieve
this objective, the employees present discussed an attempt to return to work at the
Respondent 's plant despite the presence of the union pickets.8
On the night of July 28, 1954, the union membership did meet. No action was
taken, however, to "withdraw" the Union's earlier grant of authority to the District
Council with respect to wage negotiations.
G. The meeting at the plant
After the union meeting, I find, some of the Respondent's nonsupervisory em-
ployees, within the unit herein found to be appropriate for the purposes of collective
bargaining, met outside the union hall to discuss their problems with respect to the
outcome of the meeting and the possibility of an attempt to return to work. One of
them suggested that the conference be adjourned to the parking lot at the Respondent's
plant. When the employees reached the plant premises, however-about 9:30 or 10
o'clock-they found the door of the Respondent's machine shop, adjacent to its
employee parking area, open. They entered the shop. Additional employees, I find,
arrived subsequently. (At least 22 employees, at one time or another, appear to
have been at the shop. A stipulation of the parties, noted for the record, indicates
that the number present fluctuated, from time to time, as various employees entered
and left the shop.)
Sometime prior to the employee assembly now under consideration, I find, a
worker by the name of Alva Robertson, previously noted, had telephoned Hughes
to advise him of the fact that such an assembly would be held at the Respondent's
plant. The only available evidence with respect to the conversation between Robert-
son and Hughes indicates that Hughes was asked to be present at the Respondent's
shop to "answer questions" which the -employees might present.9 Hughes asked if
he might bring Natale Giustina and his brother, Ehrman Giustina, the firm's pro-
duction manager, with him. He was informed that he was free to do so. There is
no indication in the record that he interposed any objection to the use of the Re-
spondent's premises for an assembly of its employees.
The meeting was opened by Robertson; with the employees gathered about him in
a semicircle , he referred to the fact that they "knew" why they were there, and went
'Giustina's testimony with respect to this exchange is couched in obverse terms ; he
claims that he asked whether Howden considered the contract broken, and that the
business agent gave a negative reply. The variance may be dismissed as immaterial.
8,My conclusion that such a meeting occurred,on or about July 24 is based upon'-the
stipulation noted for the record, to which reference has previously been made. Inde-
pendent evidence offered by the Respondent establishes that 11 union members-a group
Including Alva Robertson and Glenn L. Winey, among others-presented a written request,
at or about this time, to the Union's president that a special meeting of the union
membership be held on the evening of Saturday, July 24, 1954, for the purpose of "with-
drawing" the District Council's authority to represent the Union in the wage negotiations
then current, and for the purpose of taking such other action as might be consistent and
necessary under the circumstances Temporal considerations, therefore, suggest that the
written request may have been prepared prior to July 24. No question has been raised,
however, with respect to the exact date of its preparation ; I find it unnecessary, therefore,
to resolve any possible conflict between the stipulation and the evidence offered by the
Respondent in this connection.
O The testimony in question is that of Hughes To the extent that it may warrant a
conclusion that he was advised by telephone of the fact that a conference or assembly
would be held at the plant, I find it credible His indication that he was merely "invited"
to be present, however, in order to "answer questions" may be subject to question as
testimony of a self-serving character, under all the circumstances ; an evaluation of the
situation in this regard may appropriately be deferred, in my opinion, until the available
-evidence with respect to the assembly , and his participation in the discussion which took
place, is completely set forth.
GIUSTINA BROS. LUMBER CO. 715
on to report that he had called the "bosses" and that they would "come down" and
be available for questions. According to the stipulation, previously noted, he then
called Hughes; the latter, accompanied by Natale and Ehrman Giustina, thereupon
joined the assembly. The record does not reveal, definitively, where Hughes and the
Giustina brothers were when they were called. There is some testimony, however,
that they were in the shop, and in a position to observe employees as they arrived,
before they were "invited" to join the assembled employee group. Upon the entire
record, I am satisfied that they were already upon the plant property at least; there
is no indication that any appreciable period of time elapsed prior to their appearance,
with Robertson, at the headof the shop group. Before the discussion began, Hughes
asked whether everybody who had been invited was present. He was assured that
"just about" everyone was there. (Hughes testified that he had no recollection of
any such exchange. Three of the General Counsel's witnesses, however, attributed
the inquiry noted to him, in words or substance. And upon the entire record, indeed,
such an inquiry would seem to be consistent with his character and the general tenor
of his remarks, as revealed in the stipulation previously noted. I find that he raised
the question noted, and received an affirmative reply.) Robertson, however, inter-
rupted to observe that a few employees were present who should not have been
there. He requested a conference with Hughes and Ehrman Giustina, and the men,
I find, engaged in a brief consultation. Hughes then returned to his position at the
"head" of the assembled employees.io
Turning to the individuals designated by Robertson, Hughes asked if they had been
invited. He was advised by Wright that Johnson had extended their invitation. Upon
receiving Johnson 's confirmation , Hughes asked if everybody at the union meeting
had been invited. He was advised that no general invitation had been issued . Hughes
then declared, I find, that:
Before we go any further, I want to state that it is my opinion anyone has a right
to present his individual grievance provided the collective bargaining agent has
had an opportunity to be present and I 'm wondering if Howden knows about this
meeting and has had an opportunity to be present if he desires.
He was advised by an unidentified employee that the Union's business representative
could have been present if he had wished to attend.
There is some testimony that Hughes went on to say that it would probably be a
"good thing" if Howden were in attendance . Hughes denied any such statement.
Upon the entire record and my observations with respect to the demeanor of the
labor relations director as a witness, I credit his denial. There is also testimony that
Hughes went on to observe , in words or substance, that "There 's no use kidding our-
selves, fellows " and that the strike had gone on long enough and it was time to do
something about it. In view of the caution displayed by Hughes in every other con-
text, however, when speaking in the Respondent's behalf-coupled with his meticu-
lous efforts to be "exact" which frequently bordered -on the captious-I find it impos-
sible to credit testimony that he made such an open declaration of the Respondent's
intent to "do something" about the continuation of the strike . His denial of the
remarks thus attributed to him is credited.
Robertson then, suggested , I find;. that some of the employees who.:w ,ere, "new" to
the "idea" which had:proinpte'd the assembly, and who had not been thinking about
it very long , be permitted to talk . He did not identify the "idea" in question. In the
light of his suggestion , nevertheless , Hughes asked the men if they had anything to
say. There was no reply. At this point , however, Hughes did not relinquish the
assembly 's attention ; instead, I find , he embarked upon extensive remarks. By stipu-
lation, it has been agreed that he began as follows:
Very well. I sincerely hope that none of you have come here with the intention
of just listening to what is going on and then reporting it back to the hotshots.
There's an operation up near Bellfountain where they had a couple of men who
ran to the District Council every time they heard something ; they have a name
for those fellows, they call them rats. I hope none of you are going to be called
74 Robertson 's reference to the fact that some employees were present who should not
have been there, I find , involved four employees present at the invitation of Clifford
Johnson, a nonsupervisory worker : Dean E. Sparks, G. Lewis Wright, Orville Bloom, and
Johnny Zybach. Their testimony, which I credit, establishes that Johnson had invited
them to attend the assembly at the Respondent 's plant, shortly after the adjournment of
the union meeting previously noted. In the light of the available evidence, I find that
Johnson had referred to the assembly as a "secret meeting" to be held in the.machine
.shop, adjacent to the parking lot, at the Respondent's plant.
716 DECISIONS, OF, NATIONAL LABOR RELATIONS BOARD
rats by the fellows you work with. Now, if any of you want to leave I'm sure
it will be satisfactory to everyone else. Well, I'm sure I don't need to tell you
what will happen to you in the future.
Robertson then indicated by words and gestures that anyone who did not wish to go
to work might leave. The record does not establish, however, that any employee did.
At this point, therefore, after giving the Johnson invitees a thorough scrutiny,
Hughes said, "Very well, we will assume everyone here feels as you do" and embarked
upon the body of his remarks He disclaimed any intention to "knock" the Union,
declaring that it had done the people of the Willamette Valley a great deal of good.
He expressed the conviction that the Giustina brothers felt the same way, and that
the Respondent did not wish to "break" the Union. Hughes went on to point out,
however, that the union leaders had a "tremendous responsibility" to the members
of the organization, by virtue of the power inherent in their position, to "dictate the
lives" of several thousand men, and that they ought to be conscious of their responsi-
bilities in that regard. In this connection, according to the stipulation, Hughes de-
scribed the current strike as an "entirely uncalled for" action. He referred to the cost
of the strike to the employees involved, and pointed out that all of the strike settle-
ments negotiated with particular employers since its inception had been for a lesser
sum than the Union's original wage demand
After a reference to the fact that the Respondent's management, allegedly, could
have lowered the wages of its employees by 5 cents, and then settled on the basis of
a fictitious 5-cent raise, Hughes went on to say that the Respondent would take no
such course. In this connection, I find, he declared that-
We are going to be honest with you. We are not going to make an offer, and
we are not going to try to make you think you are getting something when you
are actually getting nothing. That is not the way we operate. We are going
to lay the cards flat on the table.
The labor relations director went on to explain that the market for the Respondent's
product was poor, and that prices were low. Referring to the fact that the Respond-
ent's "gypo" competition could operate profitably under the market conditions then
'current, starting and stopping operations in the light of the market situation, Hughes
declared that the Respondent, too, could see its way "clear" to increase wages if it
did business in the same fashion. He advised the employees, however, that the
Respondent thought it more important to be able to keep a good crew by paying a
"fair" wage and providing "steady" work.
At this point, I find, Hughes declared that management representatives in the
-Willamette Valley, in general, had done an "awfully poor job" of keeping workers
informed as to their individual rights and their liberty to do as they wished. In this
connection, also, he went on as follows:
Remember, as I've told most of you while you were on.picket duty,-generally
-a man has a right to strike or not to strike as he sees fit, to engage in concerted
activities such as a strike or refrain from them, and neither the Union nor the
employer can discriminate against the man for his actions. The Taft-Hartley
Act is your protection and provides this and is still the law of the land. In
the first place, the Union cannot keep you from working if you want to.
,At this point, according to the stipulation, President Giustina interrupted to remind
the men of their "individual rights" under the constitution; he declared that:
It is the rights of the individual that we think is important. Your rights as a
man to work where and when you want to. No union can make you go out on
strike. On the other hand every man also has the right to strike if he wants to.
Any individual working in the mill can go on strike and we can't do one thing
about it. He can tell us to go climb' a tree. But if he didn't want to strike,
nobody can make him. He has a right as an individual to keep on working.
One of the employees raised a question as to the Union's strike vote, to which
Hughes replied that he did not have much "respect" for the vote, since it had only
carried by a small majority and since no more than 20 percent of the Respondent's
plant employees had voted for strike action. He went on to explain these 'observa-
tions, I find, with a detailed reference to the strike vote figures. After pointing out
that only 82 of the Respondent's 250 eligible employees had voted, Hughes applied
the overall percentages revealed by the poll results and deduced that, approximately
52 of the Respondent's employees must have voted for the strike while 30 voted in
opposition; he concluded that those who had voted for the strike represented only
'20 percent of the Respondent's crew, and declared himself unwilling to believe that
GIUSTINA BROS. LUMBER CO. 717
the wishes of this percentage of the crew represented the "wishes and desires" of the
entire group.
With a disclaimer of any "hard feelings" on the part of the Respondent , however,
and a declaration of personal respect for Business Representative Howden, Hughes
then concluded his formal remarks.
At this point in the discussion Orville Bloom , one of the Johnson invitees , raised
a question as to what would happen to the returnees when the strike ended; specifi-
cally, I find, he asked what would happen if any union men rehired upon the termi-
nation of the strike refused to work with men who had returned to work earlier.
Natale Giustina reassured him, in effect, that the Respondent would be "tough" in
resisting such a development. An unidentified employee then observed, however,
that if the men present went back to work they would be "through" with the Union.
Hughes, in reply, declared:
No, you're not. . Now all you have to do is to walk up to one of the
committee and offer your money to him. If he doesn't take it, the union can't
kick you off the job.
Bloom then asked about the pay the returnees would receive. He was advised by
President Giustina that the Respondent intended to maintain the wages, hours, and
working conditions in effect at the start of the strike. Giustina added, however, that
the Respondent would like to pay its employees on the basis of their ability, but that
the status of the Union as the representative of the employees precluded it from
doing so. Bloom then asked if the men would continue to enjoy the other rights
and advantages they had gained through the Union, if they returned to work.
President Giustina, prompted by a reference to the Respondent's veneer plant, re-
sponded as follows:
Look at the veneer. All right, they've got everything you've got, except sen-
iority, and they don't want that. The best man gets the job and they're happier
that way. Seniority is out.
The stipulation previously noted for the record, which attributes these remarks to
Natale Giustina, gives no reliable indication as to whether his last observation was
intended to be descriptive of the situation in the veneer plant, or a forecast of change
with respect to the Respondent's sawmill seniority policy in the event of a resumption
of operations. And since the record as a whole affords no alternative basis for a
choice of one interpretation in preference to the other, any invidious inference as
to the significance of Giustina's remark would seem to be unwarranted.
At this point, however, an unidentified employee asked why the District Council
did not wish the men to return to work. Hughes undertook to reply; he advised the
men that the members of the District Council were not thinking about them but about
the organization's income of $4 per month from each man , or about $900 per month
from the Respondent's employees. Specifically, I find, he declared:
That's right. All they're worried about is their nine hundred dollars a month.
That's what they take out of this plant. They're just thinking about their jobs.
An unidentified employee, according to the stipulation, then raised the rhetorical
question, "If they can think about their jobs, why can't we think about our jobs."
And Natale Giustina, I find, declared, "That's it. That's the whole thing right
there." A further question was raised as to whether the employees present could
withdraw from the District Council or, better still, form a "new union" of their own.
At this point, however, Hughes interrupted to advise the employees that:
Now, just a minute. Pardon me, Nat, let me say a few words just here. This
is not the time nor the place to discuss anything like that.
There is testimony, offered in the General Counsel's behalf, that Hughes then
declared, in words or substance, that "I think it would be better to just use our
individual rights and go back to work like we've planned." Hughes and President
Giustina, however, with support from the firm's production manager, vigorously
denied any such remark. Dean Sparks-the employee responsible for the notes
upon which the stipulation herein previously quoted, at length, is based-did more
than testify that Hughes had made the quoted remark in substance; he insisted, as
a witness, that Hughes had spoken in the first person plural. In the entire context
of the case, however, and upon my observations with respect to the demeanor of
the Respondent's labor relations director, I find this testimony incredible, and
the denials of Hughes and the Giustina brothers more worthy of acceptance. It
is so found.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An unidentified employee, I find, then requested that the men get "this thing"
started . He did not identify his reference . Hughes, however , suggested that he
and the Giustina brothers withdraw from the shop, and they did so. Robertson
then requested a show of hands on the part of those present who wished to return
to work. The stipulation suggests, and I find, that a majority of those present
indicated a desire to participate in the "back-to-work" movement. At this point,
therefore, an unidentified employee raised a question as to whether the group wished
to return to work in the morning, or at the outset of the following week. A show
of hands was again requested , and Robertson then announced that the men would
go to work the next morning. A division was demanded, however, and Robertson
asked all of. those who wished to return to work in the morning to step to one side.
The results of the division, apparently, confirmed the decision previously indicated;
Robertson announced that the men would go to work in the morning, and sug-
gested that they see the management. Hughes and the Giustina brothers were
asked to return to the shop, and Robertson reported that most of the men wanted
to come back to work in the morning, if the Respondent would let them. President
Giustina, I find, observed that there was plenty of work, and that the management
would see the men in the morning, when the whistle blew.
The stipulation previously noted, upon which most of my conclusions have been
based, indicates that Robertson's effort to promote a decision with respect to a
possible resumption of work by the employees was accompanied by an attempt
to characterize the four Johnson invitees, previously noted, as men who had come
to the shop to start trouble. Wright and Bloom , however, protested that they
had come in quest of information, and that they had not understood themselves
to be under any obligation to accept the idea of an immediate return to work,
when they came. Robertson, I find, told them, in substance, to leave the shop
if they did not like the idea of a return to work. Upon Wright's further protest,
however, he apparently abandoned his attempt to force their departure, and the
record shows that he proceeded with the vote already described. When an un-
identified employee suggested, nevertheless, that the men ought to wait until
Monday before returning, Robertson declared that the men who were not ready
to go to work immediately might as well leave the assembly. At this point, I find,
Wright again pointed out that some of the men might need additional time to
consider the matter, and Robertson finally called for the show of hands previously
noted, on the issue of an immediate return as opposed to a return at the outset
of the following week. Although the cold record, in this connection, provides no
clear-cut evidence as to Robertson's attitude, and the manner in which those polls
were conducted, the tenor of the stipulation as a whole would certainly seem to
warrant an inference that Robertson, personally, favored a return to work at the
earliest possible moment, and that his conduct as the unofficial leader of the dis-
cussion effectively projected his views in this connection. It is so found.
While the assembly was in the process of dispersal, the Respondent's management
representatives were accosted, outside of the shop, by the Johnson invitees; they
were advised that no one had come to the meeting with a desire to cause "trouble"
and they informed the invitees, in return, that they felt it had `been a good thing
to "lay" their "cards" on the table, and that they held no "hard feelings" against
anyone as a result of the night's development.
On July 30, 1954, apparently as a result of the assembly noted, the initial charge
in the present case was prepared and submitted to this Agency. It was docketed,
I find, on August 2; a copy of the unfair labor practice allegations was mailed
to the Respondent on the 5th and received on the 6th of that month.
H. The resumption of operations
In the meantime, as of July 29, a sufficient number of strikers had reported for
work to enable the Respondent to resume partial operations. On August 5, 1954,
therefore, the Respondent sent a letter to all of the employees who had gone on
strike and not returned. In it the firm's employees-among them the second-shift
workers-were advised that:
Operations at our plant in Eugene were resumed July 29, 1954. Some of
you have not returned to work. We plan to continue our Eugene operations.
If you have not returned to work by Monday, August 9, 1954 to start the
regular day shift, it will be considered that you have severed your employ-
ment and we will look to others to fill the jobs.
Subsequently, additional employees who had been on strike returned to work at
the Respondent 's plant; with a certain number of new employees , these returned
GIUSTINA BROS. LUMBER CO. 719
strikers enabled the Respondent to establish and maintain its Eugene operations
at a substantially "normal" level, on one shift.ll
On August 25, also, a petition for the decertification of the Union at the Re-
spondent's plant was docketed at the Board's Subregional Office in Portland, Oregon;
it had been prepared and filed, I find, by one of the Respondent's workers, Glenn L.
Winey, and a group of associated employees. The Respondent, I find, received
a copy on August 27. The petition called for the decertification of the Union as
the bargaining agent of the production and shipping employees of the Respondent's
sawmill operation at Eugene, Oregon, exclusive of guards and clerical and super-
visory employees. It cited April 1, 1955, however, as the expiration date of the
Union's then current contract with the Respondent Employer.
A copy of the petition was mailed to the Respondent. Subsequent to August 26,
1954, on a date not set forth in the record, it was received and read by the firm's
labor relations director.
1. Attempts to settle the strike
The previously noted "industry-wide" strike in the lumber trade was still
current. On August 26, 1954, in consultation with the governors of Oregon and
Washington, representatives of the industry and the interested unions agreed upon
a procedure calculated to eventuate in a strike settlement. 12 In substance, the par-
ties agreed, consistently with their negotiating authority, to take certain action
themselves and to recommend certain action to their principals. Among other things,
I find, they agreed upon the appointment of a fact finding board to investigate the
"industry" issues involved in the strike and to report its findings to both parties.
Pending the board's report, they agreed to recommend that all crews be returned
to work as soon as practical, and that the parties refrain from discrimination against
any employee, employer, or union member for conduct since the inception of the
strike. The parties to the agreement also agreed to require a report by the board
within 90 days, unless they granted it an extension; the agreement also required the
board to release a public statement as to its findings of fact
in the event that any of the parties fail to accept and act in accordance
with any findings or recommendations of the board or panel.
The signatory parties also agreed to recommend that any wage increase which might
result from the fact finding procedure agreed upon be paid retroactively from the
date on which the employees resumed work. The agreement, insofar as it affected
the Union and the Respondent, concluded with an endorsement, as follows:
The Representatives of the Lumber Operators and the Lumber and Saw-
mill Workers, American Federation of Labor, recommend that the above
stipulation be endorsed by the individual employer and the Union.
On August 31, 1954, Business Agent Howden and other union representatives
presented a copy of the governors' proposal to the Respondent's management as
the basis for a strike settlement. Hughes asked if it was the Union's desire to
"negotiate" on the basis of the proposal. Answered in the affirmative, he charac-
terized the proposal as inapplicable with respect to the Respondent's employees, and
went on to explain:
In order to bring any of you fellows up to date, I would like to tell you that
under date of August 26, 1954, this company received notification from the
NLRB that a petition for decertification of Local 2611 as the collective bar-
gaining agent for the employees in the plant had been filed. . . Inasmuch
as your position as bargaining agent has been questioned by the employees
working in this plant and we have been officially notified of this by the NLRB,
until that question is resolved we do not feel it is proper to negotiate with you.
Hughes was asked if the Respondent would negotiate with the Union if there were
no question as to its status as the exclusive bargaining agent of the firm's employees,
and replied in the affirmative. On this note the meeting ended.
n On August 8, at a meeting of the Respondent's crew , those present voted 71-12 to
return to work only as a "group" under the sponsorship of their union. The picket line
was continued.
2 For approximately 2 weeks prior to the announcement of this agreement it was
common knowledge, known to the Respondent, that the governors of the 2 States affected
were involved in an effort to find a formula which would end the strike. The fact that
an agreement on a formula had been reached was published on August 27, 1954; It came
to the Respondent's attention, I find, on that date.
720- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 2, 1954, however , the Union received a letter, signed by Presi-
dent Giustina of the Respondent , which read as follows:
You are notified that the Collective Bargaining Agreement between Local
Union No. 2611 , Lumber and Sawmill Workers and this company is terminated.
In reply, on September 13, 1954 , Business Agent Howden dispatched a letter to.
the Respondent calling its attention to the fact that its trade agreement with the
Union could only be terminated in accordance with the provisions of article XIII,
-previously noted , and that the agreement therefore was still in effect . On September
16, 1954, the Union also filed its first amended charge in the present case, alleging
8 (a) (1) and ( 5) unfair labor practices on the basis of the Respondent 's entire
course of conduct prior to that date.
The Union 's regular monthly meeting , held on the 14th, had not led to any formal
action, on the basis of the Respondent 's earlier conduct , by the membership. At -
a special meeting about 2 weeks later , however, the union members voted to accept
the governors ' proposal as the basis of any settlement with the Respondent on the
wage issue . No announcement , however , was sent to the firm
In due course , on December 6, 1954, the Regional Director of the Board notified
-Glenn L. Winey and his associates that the decertification petition they had filed.
-would be dismissed
. . . inasmuch as the collective bargaining agreement currently between the
company and Local 2611 of the Lumber and Sawmill Workers , AFL, constitutes
a bar to investigation of representatives at this time. . .
-Copies of the letter were dispatched to the Respondent, the Union , and their respec-
tive attorneys , among others . The petitioners were advised , by the Regional Di-
rector , of their right to obtain a review of his dismissal action by the presentation
of a request for such review to the Board, and the service of a copy of any such
-request upon the other parties, within 10 days after the receipt of the above-indi-
cated dismissal notice The record establishes that such a request was filed.
On December 22, 1954 , the Governors' Lumber Fact Finding Board issued its
report with respect to the issues in the Pacific Northwest Douglas fir lumber industry
-strike . It referred to the history of the dispute between the AFL and CIO unions
and the various employers involved , the scope of the union demands, and its rec-
ommendations with respect to the wage adjustment and related issues. Sub-
-stantively, it found that a "moderate increase " in basic wage rates with respect to
all classifications would be appropriate , and recommended that an increase of 71/2
cents per hour be granted by the employers involved , effective from January 1,
1955, to April 1, 1956; in consideration of the proposed increase . it recommended
-that all of the other issues involved in the strike be considered resolved.
J. Renewed negotiations
On January 4, 1955, the Respondent , over the signature of Sam Hughes, addressed
a letter to the Union suggesting that negotiations be resumed , in view of certain
-"new matters " which had developed since their August conference . The Union
was invited to set a meeting date; it was advised , however, that:
Neither this letter nor any meeting shall be construed to have any effect upon
the representation proceedings filed by Mr. Winey and Associates.
Pursuant to the Respondent 's request, a conference was held at the plant on
January 8, 1955; Sam Hughes and the Giustina brothers attended for the Respondent,
-while Business Agent Howden and District Council Secretary Kraal represented
the Union No representatives of the Willamette Valley Lumber Operators As-
-sociation were present in a representative capacity . 13 Kraal, I find , opened the dis-
cussion with an inquiry as to the nature of the matters the Respondent wished to,
discuss . Hughes , in reply , declared that:
The meeting , as T say, is held at the request of the company . And we wish
to make clear , the holding of this meeting is not a waiver on the part of the
company of any question of representation that has been raised by any em-
ployee in this company, or group of employees by means of a decertification
19 A transcript of the conference discussion has been made a part of the record No
-testimony calculated to supplement or modify it was offered My findings with respect'
-to the conference , therefore , may he taken as bottomed upon undisputed evidence
GIUSTINA BROS. LUMBER CO . 721
petition, or any other matter brought before the NLRB. The company wishes
you to be informed that the new developments we make reference to, are first
of all the 71/2 cent an hour pay increase which is being effectuated in a portion
at least of the industry , and has been placed in effect in most other employer's
operations that we have knowledge of. Secondly, as you may, or may not,
know a recent decision of the National Labor Relations Board has reversed
a prior holding and well-established rule of the Board to the effect that if
there was a representation matter raised, a question raised concerning the status
of an incumbent union, it was an unfair labor act for the company, the em-
ployer, to negotiate with the incumbent union. That is the other new develop-
ment that I wish to make clear, and have the record show, and reference is
made to that new development as the purpose of this meeting.14
Hughes went on to declare the Respondent's willingness to make a 71/2-cent-
per-hour wage increase effective for all of its plant employees, except those excluded
from the bargaining unit under the statute, as of January 1, 1955, and asked if the
Union had any objection. Howden, for the Union, countered with a tentative
observation that any such increase ought to be committed to writing and signed,
prior to its effectuation at the plant. Kraal, as the District Council's representative,
pointed out, however, that it had been authorized to negotiate the wage issue on
behalf of the local unions within its jurisdiction, and that it had several subjects
which it would have.to "get out of the way" before any settlement of the wage issue
could be discussed. He pointed out, I find, that the Respondent had not been a
party to any antecedent agreement to effectuate the recommendations of the
governors' panel. Hughes, however, declared the Respondent's readiness to effectuate
a wage increase of 71/2 cents per hour because it appeared to represent an established
industry pattern, and in order to maintain the Respondent's competitive position
with respect to other employers in the labor market. He agreed that the Re-
spondent's action would not be based upon any prior commitment to adopt the
recommendations of the governors ' panel as a settlement formula . In reply, I
find, Kraal went on as follows:
Well, I will make my position clear. I am not here to tell you you can, or you
can't place it in effect. That is the company's business. You can do what you
please about it, but it is neither here nor there with the District Council until
certain other questions have been taken care of satisfactorily. We are not
here to discuss 71/z cents wage increase or anything else until other things are
cleared up. We are not here to tell you that you can't do it.
When Hughes then pointed out that the Respondent had no trade agreement with
the Council, and that its questions with respect to the effectuation of the wage in-
crease had been addressed to the union representative , Kraal identified himself as
a District Council official "called" by the Union, and speaking in its behalf. As
such, he reiterated his earlier statement, saying-
I said you just go ahead and run your own business as far as your wage structure
is concerned here until you take care of such other matters between the union
and the company, then we will be prepared to talk, as to wages. At the present
time, we are not prepared to talk.
Upon the settlement of the "other matters" in dispute between the parties, Kraal
indicated, the Union would be ready to discuss the applicability of the recommenda-
tions of the governors' panel, as noted.
When the discussion turned to the, "matters" thus noted, Kraal referred, I find,
to the fact that the strike at the Respondent's plant was still current; he referred,
also, to the Respondent's antecedent refusal to negotiate as a cause of the strike,
and declared that it had committed unfair labor practices. These were characterized
as the source of the "unsettled" questions. In response to a direct inquiry by Hughes,
Kraal again refused to discuss the Company's proposal with respect to a 71/2-cent-
per-hour wage increase, but declared that the Union would be happy to discuss
it after the disposition of the other "disputed matters" noted. Howden, in effect,
14 The decision cited by Hughes , I find , involved the William D. Gibson Co ., Division of
Associated Spring Corporation , 110 NLRB 660 , in which this Agency held that its well.
established Midwest Piping doctrine would not be applied in situations where an employer,
despite the pendency of a representation petition , contracted with a labor organization
with status as an incumbent union actively representing its employees.
405448-47-vol. 116-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confirmed Kraal's statement with respect to the Union's position.15 . Upon Howden's
observation that the Union had not had an opportunity to take an official position
in regard to the acceptability of the recommendations made by the governors' panel
with respect to a wage increase, he was asked to state his own position; he indicated,
I find, that he would probably recommend acceptance of the recommendation, in-
sofar as the Respondent and all other employers were concerned, if "certain other
matters" could be understood. When asked to be specific, Howden called for an
admission by Hughes that the trade agreement between the parties was still in
effect; Hughes, however, refused to make any such admission, and reiterated the
Respondent's contention to the contrary. Howden then declared, I find, that it
would do the Respondent "no good" to attempt an agreement on the wage issue in
the absence of a contract. Hughes, according to the conference transcript, pointed
out that the Union was still the collective-bargaining agent of the employees-
according to its own contentions-and that it would legally hold that status, without
a contract. Howden, in reply, declared that:
we will state that the contract is still in force, and we will have to stand
with that opinion, that it is still in force, before any wage settlement.
In effect the Respondent was advised that the Union would take no position with
respect to the proposed wage increase, in the absence of an acknowledgment by the
firm that its trade agreement with the Union was still in effect.
At this point, I find, District Council Secretary Kraal asked why the Respondent
had called upon the Union to confer with respect to the effectuation of its proposed
wage increase , instead of effectuating such an increase unilaterally , in view of its
contention that it had no union agreement . Hughes replied as follows:
... Your status as the collective bargaining agent has been challenged . There is
a question of representation which has been raised by a considerable number of
employees of Giustina Brothers Lumber Company . . . . During the latter part
of October or November, at least the latter part of 1954, the National Labor
Relations Board has reversed its earlier policy of allowing a company, or em-
ployer to continue negotiating with an incumbent union . It is no longer an
unfair labor act for an employer to negotiate with an incumbent union when a
question of representation has been raised , either by employees , or another
union . Bearing those things in mind , we addressed a letter to you, because of the
recent wage increases that have been effected in the industry .... And it is our
opinion that we would no longer be guilty of a possible unfair labor act by
negotiating with you when your status has been challenged , as has been done
in this case . That is why we desire to negotiate with you.
The Respondent , through its labor relations director , then declared its willingness to
negotiate a new agreement if the Union so desired . There was no indication of any
such desire. Kraal , however, reiterated the Union's position that it would be "incor-
rect" to discuss the matter of the wage increase currently; he denied that this position
constituted a refusal to bargain with respect to the wage issue, and insisted that the
other matters in issue between the parties-specifically , certain alleged unfair labor
practices allegedly attributable to the Respondent Employer-would have to be
settled satisfactorily first. At this point, accordingly, he was asked if there was
"anything else" that he cared to discuss ; the executive secretary replied , however, that
he had nothing to discuss at the time, and was in attendance at the Respondent's re-
quest. Nevertheless , I find , he declared his readiness to discuss "anything" at issue
between,the parties if a "reasonable settlement" could be reached. President Giustina
and the Respondent's labor relations director then characterized the Union 's position
with respect to the proposed wage increase as a "refusal to negotiate" in regard to
the issue. Their characterization was disputed by Kraal , who insisted that:
We just refused to take it up in the order that the company wishes it taken up
in. We will take it up in a little different order.... And we will get the whole
thing settled up.
When asked to define his concept of an appropriate agenda, Kraal insisted that the
parties would have to discuss "the things that happened first" at the outset. Specifi-
16 At this point a digression appears to have entered the discussion . Hughes, I find,
taxed the union representatives with the fact that none of its plant committee members
were present; he raised a question as to whether the failure of the plant committee to
appear might be due to the fact that there were no persons eligible for committee member-
ship and, alternatively, whether the absence of any committee representatives could be
said to constitute an acknowledgment that no trade agreement was in effect. Each of
these observations, however, was categorically denied.
GIUSTINA BROS. LUMBER CO . 723
cally, I find, he referred to the Respondent 's alleged unfair labor practices, and
Howden cited the presence of the Union 's picket line, and the continued status of
the strikers as company employees.
With respect to the latter issue, Hughes insisted , for the Respondent Employer,
that all of the men still on strike had been replaced, and that they were no longer
employees . Howden, in reply, observed that there would be no useful purpose
served by a continuation of the discussion if the Respondent 's position in this con-
nection was fixed . Kraal insisted , however, in the Union 's behalf, that the organiza-
tion had no desire to await a determination with respect to its unfair labor practice
charges by this Agency , as a prerequisite to negotiations in regard to the wage in-
crease; he declared , instead, that the Union was entirely ready to negotiate an amicable
settlement with respect to all of the issues involved in the pending charges , and that
it would then be willing to "come around " to the wage issue. He went on to
reiterate:
... it just so happens that we have some other disputes between us here besides
wages, and that is what I have been trying to say ... that we have got a little
bigger job to do here than just to settle the wages now. And if we go at it in
the way that I think we should, we will settle it in its order . We will settle
those things that must be settled first and then we come up to the wages, and
when that is settled , as far as I know, that is all the dispute that there is between
us and the company.
Hughes assured the District Council representative that an agreement with respect
to the effectuation of the wage increase would not be construed by the Respondent as
a waiver by the Union of its rights or remedies under the National Labor Relations
Act with respect to the unfair labor practice charges. Kraal indicated that the
Union's view was contrary , declaring that:
I would certainly consider it quite a waiver of several other questions, if we
sit down here with you this morning and tell you, you go ahead and pay your
scabs 71/z cents . We are just not negotiating for that kind of people you see.
Howden at this point returned to the Respondent 's contention that the strikers had
been replaced and were no longer company employees . He asked, in this connection,
if it would be correct to assume that removal of the Union 's picket line would not,
in and of itself, lead to their reinstatement . And Hughes, in reply, declared that:
If you mean , Mr. Howden , if Local 2611 would remove the picket line and the
men who were on picket duty would be brought back to the company and re-
place those men who are now working here , we are not willing to do any such
thing at all ... this company is not willing to discharge those replacements who
are actively employed here at this time, in order that those persons who are on
strike may return and once again become employees of this company. As far as
future employment is concerned , obviously, at any time that a man desires to
apply for work at this plant, he has a right to do so. If there is a job open at
that time, we would certainly give anyone full consideration for that job.
At this point Kraal , after a reiteration of his unwillingness to indicate acquiescence
in the Respondent 's wage increase proposal , invited its labor relations director to
submit the proposal , in written form . Hughes gave no definite indication of the
Respondent's intention , but suggested that the conference be recessed pending any
"new propositions or proposals " to be advanced by either party. On this note the
meeting ended.
On January 13, 1955 , Labor Relations Director Hughes again dispatched a letter
to the Union . He referred to the Respondent 's earlier letter of September 2, 1954,
and Howden 's reply previously noted , and declared that:
In order that there may be no doubt , you are hereby notified that we re-affirm
our notice of termination of that agreement.
The Union 's reply, over Howden's signature, reaffirmed its position as stated on
September 13, 1954, to the effect that the collective-bargaining agreement between the
Respondent and the Union could be terminated only in accordance with the pro-
visions of article XIII, and that it was, therefore , still in effect.
K. The termination of the strike
On January 19, 1955, pursuant to formal action previously taken at a special meet-
ing, the Union terminated its strike against the Respondent and withdrew its picket
line. As of the same date, its representative delivered a letter to the Respondent, pre-
pared on the basis of the Union 's vote, which read as follows:
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is to notify you that Lumber and Sawmill Workers Local Union 2611 has
taken action to terminate the strike of employees ' at your plant , and that the
strike and .picketing in connection therewith have been terminated.
The union hereby unconditionally requests the immediate reinstatement of
the employees who have been on strike.
This action on the part of the Union was followed by two additional letters to the
Company. The first of these-dated January 21 , 1955, and signed by 14 em-
ployees-contained a reference to the termination of the strike and an unconditional
request for reinstatement , as of the letter 's date. On the following day a letter of
similar import was signed by 27 strikers and dispatched to the Respondent Employer.
The Respondent 's reply, prepared by Hughes and dated as of January 22 , was ad-
dressed to the Union and marked for Howden 's attention ; it acknowledged receipt of
the Union 's letter of January 19 , 1955, with respect to the reinstatement of the
strikers , and reported the absence of any "vacancies" at the Respondent 's plant.
On January 25, 1955, the Respondent sent identical letters to the Federal Mediation
and Conciliation Service and the Oregon State Board of Conciliation to report that
it had given notice of termination of its contract with the Union and that no new
agreement had been reached.
On January 26 the Union's second amended charge in the instant case, characteriz-
ing the Respondent 's refusal to reinstate any strikers as an unfair labor practice,
was filed.
L. 'Subsequent developments
On March 8, 1955, the parties were advised by the Board that a request for review
with respect to the Regional Director 's dismissal action in regard to the decertifica-
tion petition had been rejected , and that the dismissal had been sustained:
on the ground that the Board , in conformity with its well-established prac-
tice, will not entertain a petition for representation while there is pending in
Case No. 36-CA-633 a complaint alleging violations of Section 8 (a) (1) and
(5) of the Act.
Insofar as the record shows , there have been no further contacts between the
Respondent and the Union, except those incidental to the instant case.
Conclusions
A. The issues
Essentially , it is the General Counsel's contention that the conduct attributable to
the Respondent between July 28 and September 2, 1954, involved interference, re-
straint, and coercion , directed against employees engaged in the exercise of rights
statutorily guaranteed ; with respect to certain aspects of the conduct involved, it is
further alleged that the Respondent evidenced its failure or refusal to bargain in
good faith with the Union as the exclusive representative of its employees ' in a
unit appropriate for such purposes . Additionally , it is contended that the Respond-
ent's course of conduct converted the Union 's economic strike into an unfair labor
practice strike, which was thereafter extended and prolonged by virtue of the conduct
in question , until its termination by the Union in January of the following year.
The Respondent , it is alleged , then refused to reinstate strikers who presented un-
conditional requests for reinstatement , upon the termination of the strike , to their
former or substantially equivalent employment . In the light of his antecedent con-
tentions , finally the General Counsel argues in this connection that the Respondent's
failure to take such action involved discrimination with request to the employment
tenure of the strikers , discouraged union membership and concerted activity, and
thus involved an unfair labor practice.
The Respondent , in substance , contends that its course of conduct between the
indicated dates involved ; no unfair labor practice, and that the economic strike
action originally taken by the Union , therefore , was never converted into an unfair
labor practice strike. In the light of these contentions , it is further argued that
the Respondent , under applicable decisional doctrine , retained its right to replace
the strikers permanently and resume operations ; that it did, in fact, follow such a
course; and that no charge of discrimination calculated to discourage union mem-
bership or concerted activity can properly be maintained against it on the basis of
its January refusal to rehire the strikers , in the absence of vacancies as of that date.
This report now turns to a consideration of the issues posed by these contentions.
GIUSTINA BROS. LUMBER CO . 725
B. The strike
Did the participation of the Respondent's management, and its labor relations
director, in the discussion at the meeting which preceded the back-to-work movement,
under all the circumstances, involve an unfair labor practice? Upon the entire record,
I am convinced that this question must be answered in the affirmative. Several
aspects of the situation, as revealed in the available evidence, when "incisively
analyzed" in their total context, have impelled me to this conclusion.
In the light of the entire record, it is true, there would seem to be no justification
for a conclusion that the Respondent instigated the back-to-work movement among its
employees, or that any of its mangaement representatives sponsored or promoted
the assembly which preceded its resumption of plant operations. The available evi-
dence, however, would certainly seem to warrant an inference that the Respondent's
representatives possessed advance knowledge as to Robertson's plan in that con-
nection, and that they welcomed his activity. (The contention of Respondent's
counsel that the firm's management representatives were invited to the assembly,
initially, after it had started, must be rejected as contrary to the record.) In this
regard it may be noted, for example, that Johnson, immediately after the adjournment
of the union meeting on July 28, 1954, was able to invite four union members to a
meeting in the Respondent's "shop" and that the shop at the Respondent's plant was,
in fact, open when the invitees arrived. Some of the benches in it, I find, had been
arranged to accommodate an audience.is Despite the Respondent's contrary con-
tention, I find that its acquiescence in the use of the shop by the employees, under
these circumstances, represented a departure from previous practice. It was stip-
ulated, for the record, that the shop had been used for employee meetings in the
past. Very few have been cited, however. And I am satisfied that these meetings,
in the main, were held under the Respondent's auspices, for business reasons, and
that any other employee assemblies in the "shop," to raise funds for needy workers,
were held on the basis of permission previously secured. Since the assembly now
under consideration would obviously have been considered unique, the failure of
the evidence to reveal a request on the part of Robertson for permission to use the
"shop," or any permissive grant on the part of the Respondent's representatives,
might itself suggest, at least, the consciousness of those involved that overt partici-
pation by the Respondent in the preliminary arrangements required might compro-
mise the firm and endanger the success of any back-to-work movement. And finally,
I find it worthy of note that the initial remarks of Hughes, at the assembly, reveal
his antecedent awareness of the fact that attendance had, supposedly, been limited
to those "invited" expressly. Such admitted knowledge on his part would clearly
be incompatible with any current claim of surprise. (Hughes, himself, in testifying
as to the telephone call by which he learned of the assembly, admitted that Robertson
had said nothing as to the subject about which the men wished to speak to him,
and that he had merely garnered an impression that they wished to discuss a "con-
troversial" matter, the duration of the strike. Whatever he knew about the organ-
ization and objectives of the gathering, therefore, could only have been acquired
earlier.) Upon the entire record, therefore, I am satisfied, and find, that the
Respondent's managerial representatives possessed advance knowledge with respect
to the likelihood of an employee assembly to be held at Robertson's instigation;
that they were aware of the projected assembly's purpose or possessed sufficient
information with respect to Robertson's intent to warrant a belief as to his purpose;
and that they acquiesced in the use of the "shop" at the Eugene plant for the meeting
in the light of their knowledge as indicated.
The testimony of the labor relations director, taken at face value, would indicate
that he had been invited to the assembly to "answer questions" for the employees.
It is clear, however, that his actual role proved to be more than passive. Robertson
and his nonsupervisory employee, associates may have been the instigators of the
assembly, and the back-to-work movement, but it was Hughes, beyond any doubt,
who "carried the ball" with respect to the latter objective, at least at the outset of
the discussion Upon the entire record, I am entirely satisfied that the Respondent,
through its labor relations director, participated actively in the promotion of the
11 The evidence establishes that interested employees assembled at the shop between
9 • 30 and 10 • 15 p. in. on the evening of the 28th. The record is clear, however, that the
Respondent then had no second shift in operation In the absence of a logical alternative
explanation, I find it difficult to believe that the "shop" could have been opened at that
hour, or that it would have been left open, without the knowledge and acquiescence of
managerial representatives
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back-to-work movement at the assembly. Among the aspects of the situation which
have led me to this conclusion, the following may be noted:
(1) The inquiry, attributed to Hughes at the outset, as to whether everyone in-
vited was present, and his further inquiry as to whether Sparks, Bloom , Zybach, and
Wright had been invited, bespeaks a concern with respect to the success of the as-
sembly, and the achievement of its objectives, incompatible with any claim of dis-
interested participation.
(2) Despite Robertson's failure to state the purpose of the meeting openly, Hughes
undertook to characterize it as an occasion for the presentation of individual griev-
ances, and raised a question with respect to Howden's knowledge of the assembly and
his opportunity to be present. Upon the entire record, I am satisfied that his com-
ment represented an effort to fix the course of the discussion in a fashion compatible
with Section 9 (a) of the statute. Such an effort, again, bespeaks the existence of
certain preconceptions with respect to the purpose of the meeting, and a degree of
participation incompatible with any claim of passivity.
(3) After inviting comments-not questions-in deference to an antecedent sug-
gestion by Robeitson, Hughes took command of the meeting and, as previously
noted, embarked upon extensive remarks. At the very outset, also, he saw fit to com-
ment about his hope that none of the men intended to "rat" upon their fellow em-
ployees, by reporting the tenor of the discussion to union and District Council
representatives Although expressive of a "hope" that none of those present would
render themselves persona non grata with fellow employees, his language clearly
conveyed a threat that anyone who reported back to the "hotshots" would run the risk
of such a reaction on the part of employees sympathetic to the meeting's objective,
and that the Respondent wished possible dissidents to leave rather than incur such
a risk. At the very least, these comments of Hughes indicate solicitude, attributable
to the Respondent, with respect to the sensibilities of the sympathetic employees
present. Such solicitude or concern on the part of an employer, when related to
matters outside the field of his legitimate interest, surely warrants characterization
as incongruous at least. "What's Hecuba to him or he to Hecuba?" See Foreman &
Clark, Inc. v. N. L. R. B, 215 F 2d 396. Manifestations of this type, in short, when
attributable to a management representative, can only be taken as veiled threats, or,
at the very least, as an indication of an employer's desire to advance an interest of
his own.
(4) After Robertson seconded his suggestion that those not in sympathy with the
unexpressed objectives of the meeting ought to leave, Hughes commented, "Very
well, we will assume everyone here feels as you do." By this remark, and particularly
by his use of the first person plural, Hughes indicated to those aware of the assem-
bly's objective, the Respondent's direct involvement in Robertson's plan with respect
to a return to work. The indication may have been subtle, but the evidence already
available to the employees in regard to the community of interest between Robertson
and Hughes would certainly seem to have been sufficient to guarantee that it would
not be lost. Every consideration of logic and human experience, indeed, would seem
to suggest. ineluctably, that those listening to Hughes were fully apprised, at this
point at least , of the fact that the Respondent was as much involved in the back-to-
work movement as Robertson and his associates.
As the General Counsel has put it, the assembly was not accidental; all of the
circumstances compel the inference that it had been prearranged by interested em-
ployees and the Respondent's representatives. Even assuming, for the sake of argu-
ment, that the Respondent had not initiated it, there can be no doubt that it was
dominated, in the final analysis, by Hughes and the Giustina brothers I so find.
In substance, the Respondent's labor relations director advised employees that
the strike then current was "entirely uncalled for" and costly to the workers involved.
Hughes defended the Respondent's wage policy in relation to its market situation,
and insisted upon the Respondent's intention to pay a "fair" wage and provide
"steady" work. He reiterated advice previously given the strikers with respect to
their individual rights of action, and their liberty to do as they wished with respect
to work regardless of the strike situation; specifically, I find, he deprecated the sig-
nificance of the Union's strike vote and, in effect, invited his listeners to dismiss it
as unrepresentative, insofar as the Respondent's crew was concerned.
Upon inquiry, President Giustina stated the terms upon which work would be
offered at the Respondent's plant in the event of a resumption of operations, indi-
cated his desire to pay employees on the basis of their ability, and suggested that the
men might be "happier" under an arrangement calling for the assignment of work on
the basis of individual ability rather than seniority. In addition, I find, the men were
advised that the Respondent would resist any refusal on the part of returned strikers
to work with those returning while the strike was current; they were told, in words
GIUSTINA BROS. LUMBER CO. 727
or substance, that the regular tender of their union dues would effectively insulate
them, under the law, against any attempt on the part of the Union to,have them
"kicked off" the job.
These indications with respect to the Respondent's employment policy were cou-
pled with an attempt to belittle the motives of the District Council, with respect to
the strike, as selfish, and with a suggestion that the employees would be well advised
to "think about" their own jobs, at the Respondent's plant, with equal self-absorption.
The remarks of Hughes and President Giustina, in their totality, then, amounted
to something more than a tactical maneuver or the mere provision of information
with respect to the status of the union negotiations. Implicit in the entire situation,
instead, was a direct appeal to the employees for the abandonment of their participa-
tion in strike action and concerted activity. Under comparable circumstances (see
The Stanley Works, 108 NLRB 734, 735-736) the Board declared that:
While an employer may, without violating the Act, inform the employees of
the status of its negotiations with a union, or even urge the employees to per-
suade union leadership to accept its last offer, an employer may not bypass the
exclusive bargaining representative by dealing directly with the employees on
bargainable subject matters. In this case, the Respondent appealed directly to
the employees themselves to accept the final offer, which the Union's member-
ship had already rejected. . We believe that such conduct by the Respondent
is tantamount to dealing directly with the employees on the issue of wages, in
derogation of the exclusive status of the duly designated bargaining representative.
The instant case, upon the entire record, would seem to fall within the ambit of these
principles. Cf. The Texas Company, 93 NLRB 1358, 1360-1362. The Respondent
argues that it made no attempt to deal directly with employees; its contention is
apparently based upon the stipulation of the parties with respect to the inquiry of
Hughes, at the outset, as to Howden's knowledge of the assembly, his announced dis-
claimer of any intent to disparage or "break" the Union, and his suggestion that the
shop assembly on the 28th ought not to be considered an appropriate time or place
at which to discuss the formation of a new union. The available evidence establishes,
however, that the employees present were reminded of their "individual" right to
abandon the strike and return to work; that they were urged, upon several grounds,
to "think" about their own welfare; and that, upon direct inquiry, they were informed
of the wages, hours, and working conditions which would govern their employment.
In their totality, I find, the remarks of Hughes and President Giustina amounted to a
direct appeal to the employees to accept the Respondent's final offer-the maintenance
of the status quo with respect to all significant aspects of the employment relation-
ship-which the Union's designated representatives had rejected. This was tanta-
mount to direct dealing with the employees on the wage issue then in dispute.
The Respondent argues, in passing, that its conduct in urging and persuading the
assembled employees to return on preexistent terms involved nothing more than the
exercise of its right to free speech; there can be no doubt, however, that direct deal-
ing without regard to the representative status of the recognized bargaining agent
of the employees involved a "verbal act" subject to statutory proscription.
I find, therefore, that the course of conduct attributable to the Respondent at the
"shop" assembly involved a violation of its statutory obligation to deal only with
the exclusive bargaining agent of its employees, and interfered with, restrained, and
coerced its employees in the exercise of rights statutorily guaranteed.
The Respondent's letter of August 5, 1954, to the first- and second-shift employees
who were still on strike clearly embodied a further suggestion that these employees
abandon the Union and the strike. In the light of the situation created by the
Respondent 's antecedent encouragement of the back-to-work movement , and its
direct exposition of the terms and conditions under which operations would resume,
the letter in question necessarily involved something more than a written state-
ment of the firm's intention to exercise a lawful right under the statute. Cf. Kansas
Milling Company v. N. L. R. B., 185 F. 2d 413 (C. A. 10). The Respondent's
representatives, as of July 28, had already initiated the course of conduct herein
found violative of the Act, as amended, and the causal connection between that
course of conduct and the extension of the strike, to be noted in detail elsewhere
in this report, would seem to be clear. Under such circumstances, established de-
cisional doctrines would seem to compel the conclusion that the Respondent had
lost its right to treat the union employees as economic strikers, and to notify them
that, upon their failure to resume work by a definite date, the firm would exercise
its statutory right to replace them. Cf. Kerrigan Iron Works, Inc., 108 NLRB 933,
935-936. And I so find.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In considering a communication closely comparable to that now before us, in
language and import (see United States Cold Storage Corporation, 96 NLRB 1108
at 1109-1110), this Agency declared that:
Failure to work during the pendency of a strike cannot be construed as a
termination of employment . Without notice of severance on the part of the
striking employee, a termination can be effected in these circumstances only
by the Respondent . Hence, conditioning the termination of the strikers upon
their failure to act at the Respondent 's request , stands as a specious attempt
to shift the responsibility of termination from the Respondent to the striking
employees.
When such conduct involves something more than isolated action-and constitutes,
instead , an integral part of a developing pattern of opposition to the purposes of the
statute, as herein found-it can only be characterized as an unfair labor practice.
(L. G. Everest, Inc., 103 NLRB 308, 310; United States Cold Storage Corporation,
supra; cf. Kerrigan Iron Works, supra; N. L. R. B. v. Clearfield Cheese Co, Inc.,
213 F. 2d 70 (C. A. 3) enfg. as mod. 106 NLRB 417.) I so find.
The Respondent contends that the letter ought not to be construed as tantamount
to a notice of- discharge . It is argued that it contained no "solicitation " with respect
to the abandonment of the strike , that it contained no "threat " of adverse action
on the Respondent 's part, and that the strikers were merely put on notice, by its
terms, that they would be subject to replacement if they chose not to return.
These arguments , however, amount essentially to a play on words; they may be
equated with a contention that the employees could not be expected to draw any
inference , even one of the most obvious character, from the language which the
Respondent chose to employ . If its representatives had not expected the employees
to draw such an inference , and to act accordingly , the letter would have been a
mere gesture . I cannot accept a contention , in effect, that it was so intended.
Employees in receipt of such a letter, I find, could reasonably be expected to assess
its significance in the light of the Respondent 's antecedent effort to encourage a
back-to-work movement, and to deal directly with prospective returnees. When
so considered , its essential significance as solicitation with respect to the abandon-
ment of the strike, coupled with a threat to the employment status of those oblivious
to its implicit appeal , would seem to be patent.
This characterization of the letter as involving a threat, however, need not rest
upon inference alone. When asked , at the July 28 meeting, what the Respondent
would do if any strikers returned to work after Monday, August 2, 1954, President
Giustina replied, I find, that the firm would not dismiss any replacements, hired
prior to their return , in order to put them back to work. However "correct" such
a policy announcement might have been, as applied to economic strikers under
the Kansas Milling decision , it clearly possessed coercive impact in a context of
interference, restraint, and coercion , and the Respondent's attempt to bypass the
designated representatives of its employees with respect to wage determination.
Nothing in the Respondent 's course of conduct after the dispatch of its August 5
letter can be described as inconsistent with the view that, under its terms , strikers
who failed to report by the indicated date would lose their protected employment
status and employee rights . As to such employees , it was clearly intended as a
final termination notice, and the Respondent 's subsequent course of conduct, to
be noted , reinforces the conclusion that it was so treated.
On August 31, 1955, when the governors ' proposal was presented as a formula
on the basis of which the strike might be settled , Hughes refused , categorically, to
negotiate with the union representatives . As noted, the firm's position was grounded
in a contention that the Union 's status as the exclusive representative of its em-
ployees had been "questioned" by certain employees privy to a decertification
petition , previously filed. This contention must be rejected as specious . Ostensibly,
if its labor relations director may be credited , the Respondent 's refusal to negotiate
with the Union was bottomed upon the assumed applicability of the Board's Midwest
Piping doctrine . That doctrine , as enunciated in Midwest Piping & Supply Co., Inc.,
63 NLRB 1060, and developed in later cases , established a general prohibition against
the execution of 'trade agreements by employers with I of 2 or more rival unions
engaged in the presentation of conflicting representation claims involving employees,
during the pendency of representation proceedings before this Agency.
In the light of the doctrine , so-called, the execution of a trade agreement under
the circumstances indicated would be considered interference with the Board's
functions in regard to the resolution of the representation . question , and a breach
of the employer 's obligation to remain neutral. See also William Penn Broadcasting
Company, 93 NLRB 1104; Ensher, Alexander & Barsoom, Inc., 74 NLRB 1443;
GIUSTINA BROS. LUMBER CO. 729
Henry E. Spiewak, et at., d/b/a I. Spiewak and Sons, 71 NLRB 770; and related
cases.
By virtue of its reliance upon this doctrine, however, in a situation involving a
decertification petition, the Respondent must, necessarily, be charged with knowl-
edge also as to the limitations of the decisional principle involved. These limita-
tions, indeed, would be operative as a matter of law, irrespective of the Respondent's
knowledge, in the determination of any question raised as to the propriety of its
conduct. Specifically, I find, the limitation established by this Agency in the Penn
Broadcasting case would be applicable here. In that case it was pointed out that:
a broad application of the doctrine . . . would serve only to deprive em-
ployees of the benefits of an uninterrupted bargaining relationship whenever
a clearly unsupportable or specious rival union claim is made upon an em-
ployer. . . . we conclude that the pendency of a petition for certification imposes
no duty upon an employer to refrain from continuing exclusively to recognize
and deal with an incumbent bargaining representative, such as we have here,
unless the petition has a character and timeliness which create a real question
concerning representation.
Did the petition, in this case, possess the requisite "character and timeliness" indi-
cated? I find myself led to the conclusion that it did not.
One of the essential elements involved in any determination with respect to
the existence of a question of representation is a finding in regard to the existence
or nonexistence of a so-called "contract bar" in the case. The Respondent, there-
fore, while predicating its refusal to negotiate with the Union in regard to a strike
settlement on the pendency of the decertification petition, must be charged with
knowledge of this Agency's established rule in regard to the application of "con-
tract bar" principles in decertification cases. In the Thirteenth Annual Report
of the Board, at page 29, its policy in this respect was set forth as follows:
In Matter of Snow & Nealley (76 NLRB 390), the Board enunciated the
policy of applying the usual contract bar principles and other rules of decision
involved in prior years, to decertification proceedings. Consequently, whether
in certification, or decertification ""proceedings, the Board's general rule con-
tinued to be that a valid written collective bargaining agreement, signed by
the parties and effective before the petitioner raised a question of representa-
tion, extending for a definite and, reasonable period, and embodying sub-
stantive terms and conditions of employment, constitutes a bar to a petition
for an selection among the employees covered by such contract until shortly
before its terminal date. This rule has equal applicability to newly executed
agreements and to those which take effect pursuant to automatic renewal
clauses.
The Respondent contended, at the August 31 conference, that a question with
respect to representation had been raised by the decertification petition. Yet, at the
same time, it was entirely aware of the fact that its contract with the Union had been
renewed automatically earlier in the year for a term of reasonable duration, and that
it was, therefore, in full force and effect when the decertification petition was
filed. The petition on, its face, indeed, acknowledged the existence of the contract
as a current commitment of the firm. And the Respondent had been served with
a copy. Under the circumstances, it was obligated to determine, at its peril,
whether the petition had a "character and timeliness" sufficient to create a real
question with ' respect to representation . In the achievement of a determination
with respect to this aspect of the situation , on the basis of statutes ' currently effec-
tive and authoritative legal opinions, the Respondent was not helpless; its labor
relations director, a member of the bar, clearly possesses-and did possess, at all
nnaterial times-the fund of knowledge in this specialized field necessary to reach
the required conclusion. And even if it could be assumed, for the sake of argu-
ment, that he gave no consideration, in fact, to the status of its current agreement
with the Union as a bar to the decertification petition, such an omission on the
Respondent's part would confer no absolution. The obligation would still rest
with this Agency, under prescribed statutory procedures, ultimately to determine,
after full litigation, whether a real question with respect to representation had
existed. And under applicable decisional doctrine, as noted, none may be found.
It follows, therefore, and I find, that the Respondent's refusal to negotiate with
the Union in regard to a strike settlement rested upon inadequate grounds and
involved an unfair labor practice.
It may be worthy of note,` in passing, that the Respondent's labor relations di-
rector cited no reason other than the pendency of the decertification petition as a
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
justification or explanation for its rejection of the Union's overture in regard to a
possible strike settlement . Indeed , this appears to have been the only reason evolved
by the Respondent 's management prior to the conference to justify the position which
it took. See the testimony of the firm's production manager. Counsel for the
Respondent now argues, however, for the first time, that the union representatives
attended the meeting with "closed minds" since they sought to secure the Respond-
ent's unqualified agreement to settle the strike on the basis of the formula which
the fact-finding panel was expected to evolve; it is contended that this Agency can-
not find the Respondent guilty of an improper refusal to bargain, in view of the
Union's alleged "refusal" to negotiate in good faith. The short answer to this con-
tention, however, may be found in the Respondent's concession that Howden merely
stated the Union's desire to "talk" about the proposal, and that Hughes rejected it,
out-of-hand, as inapplicable to the Respondent on the basis of the pendency of
the decertification petition. The situation therefore never reached the point, argued
by counsel, at which it could have been determined that the Union's position was,
actually, inflexible.
The Respondent's letter of September 2, 1954, also, ostensibly dispatched as a
notice to the Union that its trade agreement with the firm had been terminated,
cited no reason for its cancellation. And no reason was thereafter communicated
to the union representatives. In the absence of any proffered explanation, then, it
would certainly seem to be inferable, as the General Counsel argues, that the Re-
spondent considered the contract in full force and effect until the letter's dispatch.
Nothing in the record, indeed, would compel, or even suggest, a contrary conclu-
sion ; President Giustina's only reference, previously, to the status of the contract
appears to have been that embodied in his inquiry of Business Agent Howden, after
the strike began, as to whether the Union considered the agreement to be in force.
Howden's reply, indicative of his belief in the continued effectiveness of the con-
tract, was never thereafter challenged.
As has been pointed out , the Respondent made no effort to justify its action as
a notice of termination effective as of the contract's expiration date. The letter
was intended to serve as a termination of the agreement instanter . Its article XIII,
however, made no provision for such action by either party. If any colorable
ground for the Respondent's action existed at all, it could only have been found
dehors the agreement . No such grounds, however , were cited.
I find it impossible to escape the conclusion that the Respondent terminated its
agreement with the Union in a further effort to justify its refusal to negotiate with
that organization in regard to a strike settlement . It would , of course , be speculative
to conclude that the Respondent's action was motivated by a desire to correct the
deficiency in its legal position, previously noted, with respect to the applicability
of the Midwest Piping doctrine as a bar to negotiations during the pendency of the
decertification petition, though the Respondent's counsel has admitted that the termi-
nation notice was sent in the hope that a Board election would follow to resolve
all questions as to the Union 's status. Whatever the motives of the Respondent
may have been, however, there can be no doubt that its letter of September 2,
1954, was reasonably calculated to impair the Union 's position as the exclusive
representative of the firm 's employees , and that it could be expected at the very
least to persuade them, whether strikers or strikebreakers, that the Union had lost
its influence as their bargaining agent. Under all the circumstances , therefore,
the dispatch of the letter must also be characterized as a refusal to bargain in good
faith with the Union , and as interference , restraint, and coercion directed to the
Respondent's employees.
In the light of the available evidence there can be no doubt that each element
in the Respondent 's course of action as detailed above, and its entire course of con-
duct, involved the unfair labor practices found and served , necessarily , to convert
the Union 's antecedent economic strike into an unfair labor practice strike . Maurice
Embroidery Works, Inc., 111 NLRB 1143. Objective evidence as to the effect of
the Respondent 's course of conduct in this regard , and the consequential prolonga-
tion and extension of the strike , may be found in the record . Specifically, it may
be noted that the Respondent's employees still on strike after August.5, 1954, voted
overwhelmingly , at a regularly called union meeting, to return to work as a group.
In effect , this was a vote to extend or continue the strike , despite the apparent
success of the back-to-work movement and the resumption of operations at the
Respondent 's plant . It should be noted , also, that the Respondent 's operation was
the only one previously under contract with a constituent local of the District Coun-
cil at which the so-called "industry-wide" strike remained current after the publica-
tion of the governors '- proposal with respect to a strike settlement.
GIUSTINA BROS. LUMBER CO. 731
The undisputed testimony of District Council Secretary Kraal, which I credit,
establishes that 30-32 of the firms under contract with its constituent locals had
reached some fixed or interim settlement with respect to the wage issue prior to
the June 21 strike deadline. Between that date and August 26, 1954, when the gov-
ernors' proposal was published, about 23-25 firms settled. And about 23-26 firms
settled thereafter, on the basis of the proposal. With respect to the Union, in par-
ticular, the record shows that it had had 5 firms, in addition to the Respondent, under
contract prior to the strike deadline; of this group, 3 had settled on terms acceptable
to the Union, I find, before June 21. One had proffered an acceptable settlement
proposal on the 22d; the other accepted the governors' proposal, as noted.
An inference that the Respondent's course of conduct, as herein found, had raised
additional issues in its dispute with the Union, and thereby prolonged the strike,
would seem to be inescapable.
This conclusion, however, need not be left to inference alone. At the January
8, 1955, conference the Respondent was effectively put on notice that the Union
would insist upon some disposition of the new issues created by the firm's course
of conduct, as a condition precedent to the resumption of negotiations with respect
to the wage issue previously in dispute. In taking this position, the union representa-
tives made it abundantly clear, I find, that the issues newly raised by the Respond-
ent had become operative factors in the continuation of the dispute and the con-
tinued presence of the Union's picket line. Their statements in this connection must
be characterized as cogent proof with respect to the causal relationship between
the conduct herein characterized as violative of the statute and the prolongation
of the strike. Cf. Harcourt and Company, Inc., 98 NLRB 892, 909, in which the
necessity of proof sufficient to establish such a relationship has been explicated.
The Respondent argues the absence of any causal connection between its course
of conduct and the prolongation of the strike on the ground that "control" of the
controversy had been delegated to the District Council and the Northwest Council
of Lumber and Sawmill Workers, and that these organizations had decreed the
strike's continuation until the Respondent's acceptance of the "Governors' formula"
as a settlement basis. The contention must be rejected . Most strikes , economic in
origin, which are converted into unfair labor practice strikes acquire their character
as such, in law, despite the persistence of the original dispute which led to the
strike, and often as a result of the failure of the parties to resolve their economic
differences. The pendency of unresolved economic issues, therefore, may not be
considered sufficient, in and of itself , to prevent the conversion of any work stoppage
into an unfair labor practice strike, if the evidence establishes the employer's partici-
pation in conduct, violative of the statute, which has, in fact, prolonged the dispute.
Under established decisional doctrine, it may be taken as datum that an employer
may not discharge employees for engaging in legal, nontortious strike activity or
other protected concerted action. Colonial Fashions, Incorporated, 110 NLRB 1197,
1203; Cowles Publishing Company, 106 NLRB 801, affirmed 214 F. 2d 708 (C. A. 9);
J. E. McCatron, et al., d/b/a Price Valley Lumber Co., 106 NLRB 26, affirmed 216
F. 2d 212 (C. A. 9). It may also be taken as an elementary principle of applicable
law that an employer is obligated to bargain with the statutory representative of its
employees, even during the course of a strike, so long as the statutory agent's status,
as such , has not been terminated or otherwise , in good faith , cast in doubt.
N. L. R. B. v. Highland Shoe, Inc., 119 F.' 2d 218 (C. A. 1), enfg. 23 NLRB 259.
Neither justification for the Respondent 's refusal to negotiate, in this case , has been
established by the available evidence. Upon the entire record, therefore, I find
that the Respondent's course of conduct between July 28, 1954, and September 2,
1954, previously detailed , whether considered in its totality , or as a series of severable
incidents , involved a refusal to bargain in good faith with the Union , as the statutory
representative of its employees in an appropriate unit , and interfered with, re-
strained, and coerced these employees in the exercise of rights statutorily guaranteed.
And in accordance with the General Counsel 's contention , it is further found that
the firm's course of conduct converted the strike then current into an unfair labor
practice strike, and that it served to extend and prolong the dispute beyond the
time within which it might conceivably have been settled if confined to the wage
issue only.
In the course of the present litigation, the Respondent argued, for the first time,
that the strike action sponsored by the Union involved a breach of their trade agree-
ment , and that its notices of termination with respect to the agreement were dis-
patched "following" the breach. Upon the entire record, however, I could not find
this contention an effective defense. At the outset it may be noted that the Re-
spondent never advanced the contention while the Union's strike action and its
732 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket line were being maintained . Secondly, I find it worthy of note that the Re-
spondent's answer contains no allegation that its action in terminating the agree-
ment was justified by any material breach of the agreement 's terms by the Union;
the Respondent merely alleges that its notice of termination was dispatched, and
subsequently reiterated , after the alleged breach had occurred.
In his brief, counsel for the Respondent has, indeed , sought to justify the firm's
contract termination notices on the ground that the Respondent "thought " at the time
that the Union's strike action had breached its agreement . Reference is also made
to the fact that the Respondent 's plant was then in "normal" operation ; it is argued
that the willingness of its employees to disregard the Union 's picket line , viewed in
the light of their action with respect to the decertification petition , constituted an
'aemphatic disavowal " of the organization 's representative status. I find the argu-
ments unpersuasive as justification for the Respondent 's action.
It is true that Natale Giustina , as a witness , had testified that the firm's original
termination notices were sent, after full discussion , because of the fact that the
back-to-work movement and the decertification petition had created a "jumbled
mess" with respect to the Union 's representative status, and because of the Re-
spondent 's desire to "clear the air" in that respect. There is no evidence however,
that these subjective considerations were cited at the time. On August 31, in fact,
Hughes had advised the union representatives that the Respondent would be willing
to bargain in the absence of the representation issue raised by the decertification
petition.
President Giustina also testified that the Respondent 's management had "given
consideration" to the fact that the Union had breached its agreement by the strike
action. This testimony was given , however, by means of an affirmative reply to a
leading question ; when questioned thereafter , in general terms, as to the other factors
considered by the Respondent prior to the termination notice, Giustina testified that
the management had considered "the fact that the local gave consideration that we
had .broken the contract ." In so testifying , the Respondent 's president obviously
misspoke himself . And the fact that he did so, immediately after hearing a leading
question on the subject , may be taken : at the very least, as an indication that the
concept of a contract breach was new to him ; I find that it represents an after'-
thought, and that it played no part in the firm's decision to send the September 2
letter.
Even ' if it could be assumed however, for the sake of argument , that the Re-
spondent's plea and its course of conduct properly raise an issue as to the Union's
alleged breach of -a contractual commitment , a determination adverse to the firm
would appear to be required on the merits.
Under article II of the agreement , the parties established certain procedures calcu-
lated to promote .the analysis and adjustment of "all complaints arising out of the
collective bargaining relationship " between them , and went on to establish a proce-
dure to be utilized for the adjustment of "employee grievances" as contractually de-
fined . Article IX dealt with strikes and lockouts. It declared specifically that the
grievance procedures established under article II would be considered "adequate" to
provide a "fair and final determination" with respect to all "grievances" arising under
the agreement 's terms. I note, however , that the language of the agreement with
respect to strikes and lockouts did not interdict such action during the contractual
term , but merely provided that no such action should be !!ndertaken• or sanctioned
'until every "peaceable method of settlement " provided under article II of the agree-
ment had been tried without success . The contract went on to specify certain steps
to be taken prior to any strike or lockout action , but provided only three sanctions
in the event of any failures or omissions in that connection ; the Union obligated
`itself to "endeavor" to secure the return of any strikers in order to facilitate the
peaceful settlement of the dispute in accordance with contractually established pro'-
'cedures, the Respondent reserved its right to discipline any employees involved in
strike action violative of the agreement , and the parties agreed that no grievance
should be discussed or. processed for the duration of any violation.
In a separate and severable provision , the 'agreement provided that wages would
"continue" subject to the right of either party to request a general change, at any
time, by appropriate written notice.
The record reveals some argument as to whether article IX of the agreement was
'intended to establish procedures applicable in 'cases of impasse with respect to wage
negotiations , or was, in fact, limited in its applicability to instances involving other
unresolved grievances of 'a collective or individual character . Neither contention
was established beyond doubt . They were not, however , extensively litigated. If
'they had been , I would now be constrained , upon the entire record, to find that the
Respondent , chargeable with the burden of establishing its own affirmative defenses,
GIUSTINA BROS.'LUMBER CO. 733
had not succeeded with respect to this issue.17 I would find it by no means clear,
in short, that the Respondent was privileged to treat a strike incidental to 'general-
wage negotiations as a material breach of the agreement's strike and lockout clause.
The Respondent's contention, therefore, that the strike call involved a breach of the
agreement, and its implied contention that such a breach permitted it to elect the
agreement's termination, must be rejected.
The Respondent's answer also contains a contention, by way of affirmative de-
fense, that the Union's strike action constituted an unfair labor practice within the
meaning of the statute, apart from its character as a contractual breach; the firm
argues, apparently, that the Union ought to be held responsible for a refusal to
bargain in good faith because it resorted to strike action prior to the expiration date
of the agreement with respect to which it desired to negotiate modifications. See
Section 8 (d) (4) of the Act, as amended. It is contended that the strike, therefore,
relieved the Respondent of any obligation to deal with the organization. I would
find the argument without merit. Lion Oil Company, 109 NLRB 680, 681-686,
set aside 221 F. 2d 231 (C. A. 8), petition for cert. granted March 12, 1956. In
addition, it should be noted that the Respondent, prior to the instant case, never
sought to justify its refusal to deal with the Union, or its attempt to terminate their
agreement, on these grounds; it continued to deal with the Union and its designated
representatives after the strike began, directly and through the Willamette Valley
Lumber Operators Association committee, without even raising a question as to
the Union's alleged statutory violation. The Respondent disclaims any intention
to "push'' the point, however-and I find it unnecessary, therefore, to analyze
the contention in detail.
As a part of its case the Respondent offered the transcript, previously noted, of
its January 8 conference with the union representatives in regard to its proposal
for the effectuation of a wage increase at the Eugene plant comparable to that
recommended by the fact-finding panel. Implicit in the Respondent's presentation
is a contention that it displayed its willingness to negotiate with the Union at this
conference in regard to wage rates, and that the union representatives were the
ones who refused to discuss the issue. Any such contention must likewise be re-
jected. The Respondent, it is true, did express its desire to negotiate with respect
to a wage increase, or at least to solicit the Union's "approval" of a wage increase
in conformity with the industrywide pattern established by the fact-finding panel in
its final report. The Union, however, did nothing more than insist that the Re-
spondent's course of conduct since June 21, -1954, had complicated the strike
situation and created new issues which would have to be settled first. In substance,
therefore, the parties were unable at the outset to agree upon the subjects to be
discussed or negotiated. I cannot, however, in the light of the record, accept the
contention that the Union's position was so unreasonable as to evince a rejection
of the collective-bargaining principle.
The Respondent's counsel argues, also, that the Union did not request the Re-
spondent to bargain on January 8 with respect to the issues as it saw them. This
may very well have been true, although it is clear that the union representatives
indicated their willingness to discuss the issues then or at any time. In the light
of the available evidence, however, there would seem to be no need to consider the
implications, if any, of the Union's alleged failure to request negotiations. I find
it sufficient to note that the union representatives made no effort to prevent dis-
cussion with respect to the matters then in dispute.
And, in any event, it would seem to be clear that the Respondent's effort to secure
the Union's approval for its effectuation of the long-disputed wage increase could
not, under the circumstances herein found, counteract the effect of its antecedent
unfair labor practices. (McCarthy-Bernhardt Buick, Inc., 103 NLRB 1475, 1479-
1480; Augusta Broadcasting Company, 58 NLRB 1493, 1505.) And I so find.
Any contention to the contrary, implicit in the Respondent's presentation, must be
rejected as deficient in merit.
Finally, the Respondent argues that it was under no obligation to bargain with
the Union, since that organization's authority to negotiate with respect to wages
had been "permanently transferred" to the District Council; the Union, it is con-
tended, thereby rendered itself incapable of bargaining, in good faith, with respect
to general wage issues. The argument lacks merit. Despite the Respondent's
attempt to characterize the Union's action as a "surrender" of its responsibilities with
17 Theie is some testimony by President Giustina, for example, that the contractual
revisions negotiated in 1953, with respect to the strike and lockout clause, had been
specifically motivated, from the Respondent's point of view, by a desire to eliminate the
possibility of "quickie" strikes over grievances.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to the representation of the firm's employees , there can be no doubt that
the authority to negotiate which it delegated to the Council was, in a very real sense,
limited. Its own representative, Howden, functioned as an active participant in the
work of the Council's committee . That committee made no effort to negotiate or
execute complete agreements ; nor does it appear that Council representatives par-
ticipated, as such, in the day-to-day administration of any contracts executed by
the Union, or any of its sister locals, except upon invitation, and then only to assist
the local involved. The Council, as such, does not appear to have initialed or
executed wage agreements ; when reached , such agreements were apparently em-
bodied in definitive contracts negotiated and signed by its constituent locals. And
in the light of the available evidence with respect to the Respondent's contract
history, in particular, I cannot accept the argument that the Union's action involved
an "abdication" of its statutory responsibilities as a bargaining agent.
The District Council has advanced no claim to status as the designated repre-
sentative of any employees. And the Respondent has not been charged with any
refusal to bargain vis-a-vis the Council or its representatives. The absence of any
statutory obligation to bargain with the Council, therefore, under Section 9 (a)
of the Act, as amended, must be considered immaterial. Cf. Standard Oil Com-
pany, 92 NLRB 227, 236. And the Respondent's reliance upon the cited case
may be rejected as misplaced. In the final analysis, the Council appears to have
functioned only as the representative of its constituent locals, in the presentation
of coordinated wage demands. And, despite the Respondent's contrary contention,
I so find. It follows, and I further find, that the Union did not, by its delegation
of authority in connection with the negotiation of wage issues, withdraw from col-
lective bargaining with the Respondent, or prevent negotiation in good faith for the
purpose of reaching an agreement.la The obligation of an employer to reinstate
unfair labor practice strikers upon their unconditional application for such reem-
ployment, and to dismiss, if necessary, any employees hired to replace them on or
after the date on which their action was converted into an unfair labor practice
strike, is well established. N. L. R. B. v. Mackay Radio & Telegraph Co., 304
U. S. 333, 345; Pecheur Lozenge Co., Inc., 98 NLRB 496, 499, and subsequent
cases. The responsibility of the employer affected, in such cases, may not be con-
sidered dependent upon proof that specific strikers have not been replaced, or that
their former or substantially equivalent employment is, in fact, available for them.
East Texas Steel Castings Company, Inc., 108 NLRB 1078, 1081; Pecheur Lozenge
Co., Inc., 98 NLRB 496, 498. Nor may it be treated as dispelled or waived by virtue
of the fact that certain designated strikers may have applied for reinstatement, by
name, after the Union 's dispatch of a mass application in behalf of all of the em-
ployees involved.
It may very well be true, as the Respondent herein sought to prove, that a smaller
crew has been required to maintain its Eugene operation since work resumed.
(Extensive testimony was offered in this connection , calculated to establish that the
strike had seriously impaired the Respondent's ability to implement certain of its
plans with respect to the maintenance and improvement of its log supply, and that
the Respondent, therefore, has never been able to resume the second-shift operation
interrupted by the work stoppage.) This fact, however, if it be a fact, would affect
the nature and scope of my recommendations and this Agency's order, if any; it would
not affect the propriety of a legal conclusion with respect to the existence of the
statutory violation and the necessity for appropriate remedial action.
, Essentially, the problem seems to have developed since the concerted activity of
the Respondent 's employees itself created a business problem which , from the
standpoint of the firm, made the abandonment of the second shift necessary or
desirable . In such a situation the Respondent 's action, though motivated , insofar
as the record shows, by business necessity , would necessarily impair the exercise,
by its employees, of legitimate rights. It would seem to be essential to effect a bal-
ance which would "work out an adjustment" between the rights involved. Cf. Republic
Aviation Corp. v. N. L. R. B., 324 U. S. 793, 797. Such a balance may appropriately
be worked out in connection with the formulation of a remedy for the unfair labor
practices found.
Is The Respondent even charges that the Union's conduct, in this connection, involved
an independent refusal to bargain and constituted a union unfair labor practice causally
connected with the strike In the absence of evidence, however, tending to establish that
the designation of the District Council as the representative of its constituent locals, in
the 1954 negotiations , was reasonably calculated to forestall or prevent agreement on the
wage issue , the contention must be rejected.
GIUSTINA BROS. LUMBER CO. 735
_ In this connection , also, the Respondent sought to adduce 'evidence specifically
designed to show that designated strikers had not , in fact , been subjected to discrimi-
natory treatment . With respect to 40 individuals , an exhibit was offered to establish
the "termination" of their employment prior to the strike , or prior to the Union's
request for their reinstatement ; this group , allegedly, included men who had resigned
or reported their lack of interest in reinstatement prior to January ' 19, 1955, men
terminated at various times for physical disability , and men discharged after their
return as strikebreakers because of their "failure" to report for work thereafter.
The Respondent also listed 14 men, alleged to be discriminatees , who had returned
to work after July 28 , 1954; of this number , 7 were shown to have been subsequently
terminated , however , allegedy for a "failure" to report for work. The Respondent
claimed to have no information as to whether any of those terminated for their
failure to report had, in fact, rejoined the strikers . See footnote 7 of the Pecheur
Lozenge case, previously cited, for a discussion of the reinstatement and back-pay
rights of any employees so situated . 19 Each of these exhibits involved a tabulation
based upon the Respondent 's record; they reflect certain assumptions , employed in
their preparation , which the parties were not prepared to litigate expeditiously.
Obviously they could not have been accepted at face value , in the light of the
General Counsel's objection , to establish the identity of any strikers not entitled to
reinstatement. The exhibits were, therefore , rejected , and, at this time , that ruling
is reaffirmed . To the extent that they may adumbrate defenses available to the
Respondent , with respect to the firm 's liability to individual strikers, they may be
offered for consideration in the formulation of a compliance program.
In accordance with the General Counsel 's contention , I find that the refusal
of the Respondent , on and after January 19, 1955 , to reinstate any of the Union's
strikers constituted discrimination with respect to their hire and employment tenure
to discourage union membership and concerted activity for mutual aid and protec-
tion , and that it was reasonably calculated to interfere with, restrain , and coerce the
firm's employees in their exercise of rights statutorily guaranteed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above, which occurred
in connection with its operations as 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 , and in this instance have led, to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and take certain affirma-
tive action , including the posting of appropriate notices, designed to effectuate the
policies of the Act, as amended.
Specifically , since it has been found that the Respondent engaged in certain acts of
interference , restraint, and coercion , it will be recommended that it cease and desist
from such conduct.
It has also been found , among other things , that the Respondent refused to bar-
gain collectively with the Union on and after July 28 , 1954, and that its refusal has
continued . It will therefore be recommended that the Respondent , upon request,
bargain with that organization as the exclusive representative of its employees in
the unit found herein to be appropriate for the purposes of collective bargaining,
and, if an agreement is reached , reduce it to written form and sign it.
Since it has been found that the Respondent 's refusal to reemploy any union
strikers ,on or after January 19 , 1955, the date of their unconditional application for
reinstatement , was discriminatory and violative of the statute , I shall recommend that
the Respondent , if it has not already done so, offer the employees listed elsewhere
in this report, who were on strike as of January 19, 1955 , full reinstatement to their
former or substantially equivalent positions , dismissing , if necessary , any employees
19 The Respondent listed 29 workers , in a third exhibit, for whom work allegedly would
not have been available after August 8, 1955 , because of the second shift 's discontinuance ;
these employees were described as men newly hired for the second shift between April
25, 1954, and June 21 , or first -shift workers hired after the earlier date who would have
been "bumped" upon the termination of the second shift by reassigned second-shift workers
with seniority
736 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
hired since July 28, 1954, to replace them.20 If, after, the dismissal of any replace-
ment employees, there are not enough positions available for all of the workers
entitled to reinstatement,.available positions should be distributed among them, with-
out discrimination because of their union membership, activity, or participation in
the strike, on the' basis of a seniority system, or any other nondiscriminatory prac-
tice with respect to work assignments previously followed by the Respondent in the
conduct of its business. The employees for whom no work may be immediately
available, after such distribution, should be placed upon a preferential hiring list, with
priorities determined on the basis of a seniority system or any other nondiscrimi-
natory system previously followed by the Respondent in the conduct of its business;
they should be offered reinstatement thereafter in accordance with such a list as
positions become available and before other persons are hired for the work. Pecheur
Lozenge Co., Inc., supra, pp. 499-500. Reinstatement, as recommended in this report,
should be effectuated without prejudice to the seniority of the employees or any of
their other rights and privileges.
It will also be recommended that the Respondent reimburse all of the employees
entitled to reinstatement for any loss of pay they may have suffered by reason of the
Respondent's discrimination with respect to them, by the payment to each of a sum
of money equal to the amount which he normally would have earned as wages during
the period from January 19, 1955, the date of the Respondent's refusal to reinstate
the employees, as a group, upon their unconditional application, to the date of the
Respondent's offer to reinstate the employees or place them on a preferential hiring
list in the manner described above, less his net earnings during that period. Cf.
Crossett Lumber Company, 8 NLRB 440, 497, 498; Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7, if. Such pay losses should be computed on the basis of
separate calendar quarters, in accordance with the formula which the Board now
utilizes. F. W. Woolworth Company, 90 NLRB 289; N. L. R. B. v. Seven-Up Bat-,
fling Company of Miami, Inc., 344 U. S. 344, if.
Should a Board order in this case be necessary, in the event of any failure on the
Respondent's part to comply with these recommendations, it will be recommended
that the Board expressly reserve the right to modify the reinstatement and back-pay
provisions of its order if such action should become necessary by reason of a change
of conditions not appearing in the record, and to make such supplements to its' order
as may become necessary in order to define or clarify their application to a particular
set of circumstances not now apparent. Differential Steel Car Company, 75 NLRB
714, 732; Toledo Desk and Fixture Company, 65 NLRB 1086, 1109-1111; and a host
of similar cases.
Since a discriminatory refusal to reinstate otherwise qualified workers upon their
unconditional application after an unfair labor practice strike "goes to the very heart
of the Act" and the rights therein guaranteed (N. L. R. B. v. Entwistle Mfg. Co., 120
F. 2d 532, 536), I am constrained to find that the unfair labor practices attributable
to the Respondent disclose an attitude of opposition to the statute's purposes with
respect to the protection of employee rights in general; they are closely related to
the other unfair labor practices proscribed by the Act, as amended, and a danger with
respect to the commission of such unfair labor practices in the future is to be an-
ticipated from the conduct of the Respondent in the past. The preventive purposes
of the statute would be thwarted, then, unless the remedial action in this case, and
any necessary order, can be made coextensive with the threat. In order, therefore,
to make the interdependent guarantees of Section 7 more effective, to prevent any,
recurrence of the unfair labor practices, to minimize industrial strife which burdens
and obstructs commerce, and thus to effectuate the policies of the statute, it will be
recommended that the Respondent cease and desist from infringing in any other
manner upon the rights guaranteed in Section 7, of the Act, as amended.
Finally, in order to secure expeditious compliance with the recommendations made
herein with respect to back pay and reinstatement, it will be recommended that the
Respondent preserve and, upon request, make available to the Board and its agents
all pertinent payroll and other records.
In the light of the foregoing findings of fact, and upon the entire record in the case,
I make the following:
2 This recommendation will apply, of course, to any employees who may have accepted
reemployment for a few days, on or after July 29, 1954, and thereafter rejoined the
strikers. If still on strike as of January 19, 1955, they would have been entitled to re-
instatement on that date to the same extent as other strikers, and to compensation for
any loss of pay suffered by them as a result of the discriminatory refusal of reinstatement
herein found.
GIUSTINA BROS. LUMBER CO. 737
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2 (2) of the Act,
engaged in commerce and business activities which affect commerce within the mean-
ing of Section 2 (6) and (7) of the Act, as amended.
2. Local 2611, Lumber and Sawmill Workers , AFL, is a labor organization within
the meaning of Section 2 (5) of the Act, as amended.
3. All of the employees at the Respondent 's sawmill and planing operations in
Eugene, Oregon, and the log dump and pond located at Springfield , Oregon , exclusive
of office and professional employees , guards, and supervisors as defined in Section 2
(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act, as amended.
4. Local 2611, Lumber and Sawmill Workers, AFL, was on June 21 , 1954, and
at all times thereafter has been, entitled to act as the exclusive representative of the
employees in the unit described above for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act, as amended.
5. By its refusal to bargain collectively with the Union as the exclusive representa-
tive of its employees in a unit appropriate for the purposes of collective bargaining, on
and after July 28, 1954, the Respondent engaged in and has continued to engage in
unfair labor practices within the meaning of Section 8 (a) (5) of the Act, as amended.
6. By its interference with, restraint , and coercion of employees in their exercise
of rights guaranteed under Section 7 of the Act, the Respondent engaged in and has
continued to engage in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act, as amended.
7. By its unfair labor practices as herein found , the Respondent converted the
Union's economic strike action of June 21 , 1 954, into an unfair labor practice strike,
and prolonged the strike.
8. By its refusal to reinstate unfair labor practice strikers upon the Union's un-
conditional request for their reinstatement , on and after January 19, 1955, the Re-
spondent discriminated in regard to their hire and employment tenure to discourage
membership in Local 2611, Lumber and Sawmill Workers, AFL; the Respondent
thereby engaged in and has continued to engage in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act, as amended.
9. The unfair labor practices found are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]
APPENDIX
EMPLOYEES ENTITLED TO REINSTATEMENT
Bearden Cornwall, Arthur Harmon, Elmo
Bellmore, John Cox, Floyd Hassett, Ed
Blanton, Gene Dietz, Frank Hedegaard, John
Bloom , Orville Dilbeck, Ray Hempel , Bernard
Bogart , Charles Driggs, Otis Hendricks, H. T.
Bowers, G. P. Eaton, Charles Hicks, W. R.
Bratton, Leroy Edmon, David Hodge, O. D.
Breckwig, R. L. Elliott, Frank Hopson, William
Brock , Wallace Erickson, Eylar Huber
Brooks Evoniuk, Joe Huffman, Leroy
Brown, Billy Fitzpatrick Jackson, Alvin
Brown, E. Franks, De Jones, Arthur
Bruce, Denver Gandy, Jack Keopka, Lawrence
Bryant , Melvin Gentry Kynard, Earl
Buel, Roy Goldenberg La Cross, A. J.
Butenscheon, Frank Gray Lambert
Brock Greenhoot, Edgar Lawson , Delbert
Carlson, John Gregg, Albert Lawson, John
Carpenter, W. G. Gregg, Dale Lebow, Samuel
Casper, George Gregg, Ross Lemmer, Charles
Casteel, Iley Gregg, Vernon Lloyd
Caudle, Loyal Gutbrod Long, Bomer
Clark, Glenn Hagg, Martin Markwell, Roy
Cook, Ray Halpain McNair, William
405448-57-vol . 116-l48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Malpass, John Paris, J. H. Snyder
Matthews , Robert Parker, Paul Sparks, Dean
Mayo, Walter Peterson, P. Strehlow, Date
Meade, Clair Phillippe, John Tribe
Meadows, H. M. Pickett, John Van Dusen , Verl V.
Meskimen, Vaughn Pike, Leonard Vladik
Mikkelsen , Merlyn Potter , Maurice Walker, O. D.
Miller, Virgil Price , Clarence Warren, Al
Molinda, Fred Rasmussen, Glen Watts, Darwin
Moore, J. Reinking , Richard Watts, Eugene
Mullin, P. Reed Williams, James
Mortenson, Stanley Rice, Verlin Williams, Joe
Nash, Earl Richards, James Windham , Charles
Noble, Roy L. Roupe, Donald Wright, Louis
Noble, Roy Scarlett, Robert Yates, Joe
Nichols, Fred Scevins, Thurman Yancy, Harold
Olsen, Harold Scheid Yoder, Richard
Palmer, William Sederlin, Harold Zarzan, Alex
Pappel, Henry Smith , Anthony Zietner, Ed
Parent , Richard Smith, Lewis Zybach, Johnny
Winter Garden Citrus Products Cooperative and American Fed-
eration of Labor and Congress of Industrial Organizations.
Case No. 10-CA-f2221. August 22,1956
DECISION AND ORDER
On December 28, 1955, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that the.
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor practices
as alleged in the complaint, and recommended that these particular
allegations be dismissed.' Thereafter, the Respondent filed exceptions
to the Intermediate Report.
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 Intermedi-
ate Report, the exceptions filed by the Respondent, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions
and modifications.
1. The Trial Examiner found that the Respondent denied a bonus
to Thomas Traywick in December 1954 because of Traywick's union
1 These allegations in the complaint are that the Respondent discriminatorily denied
employment to Harlan Whigham on January 17 , 1955, and that it discriminatorily denied,
a bonus to Herbert A . Barfield in December 1954. No exceptions were filed to these
recpmmendations and we shall adopt them.
116 NLRB No. 98.