Graves Co.

National Labor Relations Board - Board Decisions

Mar 26, 1940

21 N.L.R.B. 1102 (N.L.R.B. 1940)

In the Matter of GRAVES COMPANY and LUMBER AND SAWMILL WORKERS
UNION, LOCAL 2788, UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, A. F. OF L.
Case No. C-1368.-Decided March 26, 1940
Lumber and Lumber Products Industry-Interference, Restraint, and
Coercion: charges of, not sustained-Discrtimination: charges of, not sus-
tained-Complaint: dismissed.
Mr. Charles M. Brooks, for the Board.
Mr. George I. Devor, of Los Angeles, Calif., for the respondent.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Lumber and
Sawmill Workers Union, Local 2788, United Brotherhood of Car-
penters and Joiners of America, A. F. of L., herein called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Twenty-first Region (Los Angeles,
California), issued its complaint dated May 17, 1939, against Graves
Company, Los Angeles, California, the respondent herein, alleging
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1) and (3) and Section 2 (6) and (7) of the National Labor Re-
lations Act, 49 Stat. 449, herein called the Act. The complaint
alleged in substance (1) that the respondent had discharged and
thereafter refused to reinstate Frank Brady because of his affilia-
tion with the Union and his activity therein as shop steward, and
because he had engaged in concerted activities for the purpose of
collective bargaining and other"mutual aid and protection, and (2)
that by the foregoing acts, by urging, persuading, and warning its
employees to refrain from becoming or remaining members of the
Union, and by other specified acts and conduct, the respondent in-
terfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
21 N. L. R. B., No 109.
1102
GRAVES COMPANY 1103
Copies of the complaint and notice of hearing were duly served
upon the respondent and upon the Union. On June 7, 1939, the
respondent filed a written answer to the complaint , admitting cer-
tain allegations pertaining to its business but denying that its opera-
tions affected commerce among the several States or that it had
engaged in unfair labor practices alleged therein.
Pursuant to notice and notices of postponement , a hearing was
held in Los Angeles , California, from June 20 through July 7, 1939,
before William P. Webb, the Trial Examiner duly designated by
the Board . The Board and the respondent were represented by
counsel , participated in the hearing , and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon *the issues . At the close of the
hearing, the respondent made several motions to dismiss the com-
plaint. The Trial Examiner denied these motions . During the
course of the hearing , rulings were made by the Trial Examiner on
other motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed . The rulings are hereby
affirmed.
The Trial Examiner thereafter filed his Intermediate Report, dated
September 29, 1939, copies of which were duly served on the parties,
in which he found that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) and Section 2 (6)
and (7 ) of the Act . He accordingly recommended that the re-
spondent cease and desist from such unfair labor practices. He fur-
ther found that the respondent had not engaged in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act.
Exceptions to the Intermediate Report were filed subsequently
by the respondent. The Board has reviewed the exceptions to the
Intermediate Report and, in so far as they are inconsistent with the
findings, conclusions , and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a California corporation engaged in the manu-
facture and sale of sash , doors, millwork and sash balances , and the
sale of rough lumber, hardwood , and general building supplies. Its
principal office and plant are located at Los Angeles, California, and
a retail store is maintained at Long Beach, California . The prin-
cipal raw materials purchased by the respondent include lumber, sheet
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steel, veneer, and glass. In 1938 the gross volume of the respondent's
purchases of raw and fabricated materials totaled $392,849.21, of
which $85,300 was expended for materials shipped from States other
than California. During the same period, the respondent's gross vol-
ume of sales amounted to $628,467.72, of which approximately 5 per
cent were shipped to points outside the State of California.
H. THE ORGANIZATION INVOLVED
Lumber and Sawmill Workers Union, Local No. 2788, United
Brotherhood of Carpenters and Joiners of America, A. F. of L., is
a labor organization admitting to membership all lumber production
and yard employees within the city of Los Angeles, California, and
the surrounding area.
M. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union commenced its organizing activities at the respondent's
plant in July 1936, and thereafter a substantial majority of the re-
spondent's production employees, including foremen, became mem-
bers thereof. On June 6, 1937, the Union entered into a written
contract with the Lumber and Allied Products Institute, herein
called the Institute, a trade association composed of 41 lumber com-
panies operating in the Los Angeles area, including the respondent.
The contract provided for certain wage scales and working condi-
tions covering the employees of all members of the Institute and was
to remain in effect until June 4, 1938.
On April 27, 1938, almost all of the respondent's employees partici-
pated in a strike called by the Union because of a current dispute
with the respondent over working conditions. A settlement was
effected about 1 week later, and soon after the Union began negotia-
tions with the Institute for a new working agreement. On July 20,
1938, a written contract was signed between the Union and the
Institute providing for a continuance of the wage scales and working
conditions contained in the 1937 agreement, and also providing, inter
alia, that :
The employers intend to continue the cooperative attitude
which has prevailed in the past on the part of a large majority
of the employers. Whenever vacancies occur, they agree to give
preference in employment to old employees previously regularly
employed, subsequent to June 6, 1937, in the lumber industry in
this area, provided they have the qualifications to fill the vacant
positions. But there is to be no question as to the right of the
employer to use his own judgment in the employment of or dis-
GRAVES COMPANY 1105
missal of his men. It is also understood that the employers will
observe in good faith the policy of not replacing present em-
ployees with outsiders.
In its negotiations, the Union had attempted to obtain a closed-
shop agreement, and at the hearing it contended that the provision
set forth above was intended to create, by inference, a closed shop.
It is clear, however, and we find, that the wording of the contract
permits no such construction; nor does the evidence establish that it
was the intention of the parties to make membership in the Union
a prerequisite to employment under the terms of the contract.
Following the strike on April 27, 1938, a number of employees had
become dissatisfied with membership in the Union and discontinued
their payment of dues. This dissatisfaction was attributable to their
claims that the Union had failed to keep its promise to pay $2.00 a
day for picket duty, had levied unjust fines and assessments, and had
not permitted the membership to have sufficient voice in the conduct
of union affairs. Failing in its efforts to overcome this sentiment
among 10 or 12 employees whose delinquency in the payment of dues
continued, the Union, on September 12, 1938, mailed to all of its
members in the respondent's employ post cards containing the follow-
ing notice :
By ruling voted by Local, no member will be permitted to
work after Oct. 1st, if owing a sum equal to three months dues,
unless there are extenuating circumstances. If you are not in
good standing, see Financial Secretary at once.
Don't forget to vote NO on Proposition 1, and YES on No. 2
at the special election Sept. 16th.1
A few days later, A. W. Hughes, business agent for the Union, held
a meeting of employees near the entrance to the respondent's plant.
He told those assembled that if the delinquent members did not pay
their dues the Union would force them out of work by withdrawing
from the plant all members in good standing and would prevent their
employment elsewhere by placing their names on a "blacklist."
Hughes also threatened to institute a boycott against the respondent.
Both the post cards and Hughes' statements caused considerable
discussion among the employees as to whether or not the Union's
contract with the respondent made their employment dependent upon
the payment of dues. A number of employees made inquiries of their
foreman and several went to the office of Howard Coor-Pender, the
respondent's general manager, to read the contract. Inquiries from
' "Proposition 1" referred to a proposed city ordinance for the regulation of picketing
which the Union was opposing , and No. 2" had reference to a picketing ordinance spon-
sored by the Union
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both foremen and employees were also received by William H. Gamble,
plant superintendent, who requested Coor-Pender to speak to the
men and "try to straighten it out."
On or about September 17, 1938, Coor-Pender held a meeting in
the plant of those employees who had inquired concerning the union
post cards and the statements made by Hughes. Gamble also secured
the attendance of the three members of the union shop committee
because, as he testified, "they were representatives and I wanted them
to be there to hear whatever was said." Coor-Pender prefaced his
remarks by stating that a number of employees had inquired as to the
termination of their employment if they failed to pay dues in the
Union and also as to the respondent's position with reference to
the strike and boycott threats made by Hughes. He then read the
following prepared statement:
I wish to make the statement for Graves Company, that we
are not interested in your Union activities or viewpoints. We
are not concerned with whether you do or do not belong to as
Union, whether you pay or do not pay dues and assessments. As
far as this Company is concerned you may use your own time
and wages -for any- purpose you choose. If you devote your
entire time and earnings to Union activities, we are not con-
cerned ; por - are we concerned if you do not devote any time or
money to such activities. That is a matter for your decision
and is not of even the slightest interest to us; but when Union
representatives make such claims as you state they have made,
namely : "that you will not be permitted to work after October
1st, and that this company's work will be boycotted," I wish to
call your attention to provisions in the documents just submitted
to you, so that you may judge for yourself whether these-things,
can be done.
It has become necessary to make this statement because of the
unrest and loss of time and efficiency in your work, and I hope
that this will clear the atmosphere so - that there will be no
further trouble.
Coor-Pender had in his possession two of the post cards mailed by
the Union on September 12, 1938, together with copies of the anti-
picketing ordinance 2 and the union contract of July 20, 1938. In
response to an inquiry by one of the employees, he read those portions
of the ordinance pertaining to boycotting and striking, and indicated
that a boycott would be ineffective and that the respondent was not
2 The ordinance for the regulation of picketing which had been opposed by the Union
was passed at the Los Angeles city election on September 10, 1938. See footnote 1, supra.
GRAVES COMPANY 1107
afraid of a strike. Coor-Pender then offered the copies of the ordi-
nance and contract to those present for their further examination.
It is clear that the respondent was under no obligation to enforce
the payment of dues either by virtue of its contract with the Union
or otherwise, and we agree with the Trial Examiner that in so inforul-
ing the respondent's employees Coor-Pender engaged in conduct that,
under the circumstances, was not censurable. We are not in accord,
however, with the Trial Examiner's finding that Coor-Pender's refer-
ence to the anti-picketing ordinance and his statement that the
respondent was not afraid of a strike were calculated to intimidate,
restrain, and coerce the respondent's employees. The inquiries raised
by the employees were directed to both the ordinance and the threats
made by Hughes, as well as to the provisions of the contract. In view
of all the circumstances surrounding the incident, we find that the
respondent, by the statements made by Coor-Pender, did not in fact
interfere with, restrain, or coerce its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
During the month of October, the unrest caused by the contention
over the non-payment of union dues was considerably lessened, but
following the failure of the city anti-picketing ordinance to become a
State law in the general election on November 8, 1938, the question
of dues delinquencies and the relationship between the Union and
the respondent again became the subject of much debate among the
respondent's employees. On November 16, 1938, Frank Brady, shop
steward of the Union, was temporarily laid off by the respondent.
A week later, the Union filed charges against the respondent with
the joint arbitration committee provided for in the 1938 contract.3
The charges alleged that Brady had been "laid off and/or dis-
charged" because of his union activities, and that the respondent had
induced its employees to remain away from union meetings, violated
the wage agreement, hired employees in violation of the contract,
and maintained a system of espionage for the purpose of intimidat-
ing and discriminating against union members. The respondent
filed an answer denying these charges and on November 29, 1938,
a hearing was held before the three employers and three union
representatives composing the joint committee. At the suggestion
of the committee, Hughes and A. W. Muir, international representa-
tive of the Union, thereafter held two conferences with Coor-Pender
and George I. Devor, the respondent's attorney, in an effort to settle
8 Paragraph 5 of the contract provides :
Any difficulties or misunderstandings which may arise are to be submitted to a
committee, the members of which are to be selected as set forth hereafter, which com-
mittee is to atterrypt a voluntary settlement, with the understanding, however, there
is to be no enforced arbitration, and with the further understanding that, so long as
the matter is being considered by the committee, there shall be no stoppage of
work . . . This committee is to consider complaints promptly and dispose of each
within three weeks of the time the complaint is lodged with both parties.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their differences. Although the discussion at these conferences in-
cluded the alleged underpayment of employees in violation of the
contract and the discharge of Brady, it centered around the problem
of inducing delinquent members of the Union'to pay their dues. At
the opening of the first conference, Hughes and Muir sought to
examine the respondent's pay roll to substantiate the Union's claim
that numerous employees were receiving less than the wage scale
provided for in the contract. Coor-Pender denied this request, but
offered to submit the individual pay-roll records of any named em-
ployees claimed to be underpaid. The union representatives, how-
ever, refused to divulge the names of any employees, allegedly fear-
ing reprisals. From then on, the main point of consideration was
whether or not the respondent would assist in securing the payment
of delinquent dues. Although Coor-Pender refused to call or par-
ticipate in a meeting of the respondent's employees for the purpose
of discussing the question of dues, he offered to supply the Union
with a meeting place. The suggestion that the delinquent members
be summoned for individual questioning in Coor-Pender's presence
was likewise rejected, Coor-Pender maintaining the position that the
payment or non-payment of dues by members of the Union was
neither the respondent's concern nor responsibility under the contract
and that any interference by the respondent in the matter would be
unlawful.
On December 7, the day following the second conference with Muir
and Hughes, Coor-Pender summoned to his office the union shop
committee and in their presence submitted to each of approximately
20 employees in "split classifications."' questionnaires reading as
follows :
Union representatives were in our offices yesterday and made
the statement that we are not paying you according to scale.
The company has you classified as a split classification
of --------------------
Is this classification correct according to the work you are
habitually doing?
Answer --------------------
If answer is no, what work are you habitually doing?
Answer --------------------------------------------------
What is you present rate of pay?
Answer --------------------
Do you consider this rate of pay consistent with your
classification ?
Answer ----------
4 Employees engaged in work involving more than one type of operation
GRAVES COMPANY 1109
Will you notify your foreman if you find your classification
is changing?
Answer ----------
Signed ------------------------
Date ----- -----------------
Witnesses : -
------------------------
------------------------
------------------------
Coor-Pender testified that he had not participated in the actual
fixing of • the split classification rates and since the Union had
charged the respondent with violating its wage agreement "felt that
it was wise, under the circumstances, to reduce the agreement which
I understood already existed between the employees and the em-
ployer, to writing, so I would know first hand whether or not there
could be any wage discrepancies complained about in regard to those
split classifications." 5 He further explained that when submitting
the questionnaires he had desired the shop committee to be present
"for the purpose of having them witness what was said as union
representatives together with the thought on my part if there were
any questionable items the committee, composed of men from dif-
ferent departments, would be able to give practical assistance and
advice on what the men in question might be doing." All but two
of the employees to whom the questionnaire was submitted indicated
that their classification was correct and the rate of pay consistent
therewith. Of the two, Emery Smith refused to sign, stating that
the Union should determine his wage rate. Jack Mortesen stated
that his classification was incorrect but that he "didn't know" what
his rate of pay should be. After some discussion, in which the
union committee participated, an agreement was reached raising
Mortesen's pay from 75 cents to 771/2 cents per hour.
The respondent's submission of the above questionnaire was found
by the Trial Examiner to be violative of both the union contract
and the Act. We believe this finding to be in error. The contract
specifically provided that the rate of pay for split classification
employees 'be determined by mutual agreement between the respond-
ent and the individual employee concerned and, in view of the Union's
Paragraph 3 of the contract executed on July 20, 1938, provides:
It Is agreed that, if an employee is habitually employed at work embracing two or
more classifications , an average wage, mutually agreed upon between the employer
and the employee will be paid Any misunderstanding as to the proper rate of pay
under this provision shall be adjusted by the joint committee.
Although the wage rates for split classification employees had been discussed and a few of
them adjusted following the strike in April 1938 , the agreement as to such rates was not
incorporated in the 1938 contract as was the wage scale for each of the various employ-
ment classifications enumerated therein.
283032-41-vol. 21-71
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general charges of widespread wage violations and its refusal to
divulge the names of those employees allegedly receiving less than the
rate provided for in the contract, it was only a reasonable precaution
for the respondent to reduce to writing the only wage agreements
not set forth therein. The evidence convinces us that the respondent
was not attempting to settle with its split-classification employees any
dispute or misunderstanding with respect to the rates of pay previ-
ously agreed upon, but was endeavoring to assure itself that there
existed no violations of its agreement with these employees. We
find such action under the circumstances not violative of the contract -
and constituting no such interference with the rights of the respond-
ent's employees as is prohibited by the Act.
On or about January 3, 1939, the Union advised the joint com-
mittee that no progress had been made toward reaching a settlement
in its conferences with the respondent and that, since the period for
consideration of the charges by the joint committee had expired,
further action by the committee would be of no benefit. The same
week, the Union filed charges with the Board.
In the latter part of January 1939, the continued efforts of the
Union to compel delinquent members to pay their dues, including
the threat of a strike, again became the cause of considerable debate
and unrest among the respondent's employees. On February < 14;.
1939, S. A. Collins, Brady's successor as union shop steward and a
former member of the shop committee, together with five other em-
ployees composing a representative committee, conferred with Coor-
Pender. The sole topic of discussion was whether or not the
respondent would prevent the impending strike by influencing the
delinquent members to pay their dues. Coor-Pender again refused,
reiterating the respondent's position that the enforcement of dues
payments was neither its concern nor a matter in which it could
lawfully participate. The following day, February 15, 58 of the 76
employees eligible to membership in the Union participated in a
strike called because of the refusal of the delinquent members to
pay their dues and the refusal of the respondent to compel them to
do so. The strike was still in progress at the time of the hearing.
We find that the strike was not caused by any unfair labor practices
on the part of the respondent.
Several witnesses testified to anti-union statements made by super-
visory employees during the period described above. The evidence,
however, is insufficient to warrant a finding that, such statements
constituted interference, restraint, or coercion within the:-meaning
of the Act.
GRAVES COMPANY
B. The alleged discriminatory discharge
The complaint alleges that on or about November 16, 1938, the
respondent discharged Frank Brady and thereafter refused to rein-
state him for the reason that he joined the Union, was its shop
steward, and otherwise assisted in its activities . The Trial Examiner
found that "the evidence fails to establish that Brady was either
laid off or refused reinstatement because of his union activities," and
recommended that the complaint in so far as it related to Brady be
dismissed . The Union filed no exceptions to the aforesaid finding
and recommendation of the Trial Examiner . We have examined
the record and find that it does not support the allegations of the
complaint with respect to Brady.
We find that the respondent has not discriminated in regard to
the hire and tenure of employment of Frank Brady , thereby
encouraging or discouraging membership in a labor organization.
Upon the basis of the above findings of fact and upon the entire
record in the case , the Board makes the following :
CONCLUSIONS OF LAW
1. The operations of the respondent occur in commerce, within
the meaning.-of Section 2 (6)-of the Act.
2. Lumber and Sawmill Workers Union, Local No. 2788, United
Brotherhood of Carpenters and Joiners of America, A. F. of L., is
a labor organization, within the meaning of Section 2 (5) of the Act.
3. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, within the meaning of Section 8 (1) of the Act.
4. The respondent has not discriminated against Frank Brady in
regard to hire or tenure of employment or terms or conditions of
employment, within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
complaint against. the respondent, Graves Company, Los Angeles,
California, be, and it hereby is, dismissed.