Hammond Lumber Co.

National Labor Relations Board - Board Decisions

Sep 15, 1949

85 N.L.R.B. 1320 (N.L.R.B. 1949)

In the Matter Of HAMMOND LUMBER COMPANY (TERMINAL ISLANDS
YARD) and SEAFARERS, GUARDS AND WATCHMEN LOCAL No. 1, SEA-
FARERS INTERNATIONAL UNION OF NORTH AMERICA
Case No. 21-C-3104.-Decided September 15, 1949
DECISION
AND
ORDER
On January 25, 1949, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that then
Respondent had not engaged in certain unfair labor practices, and
recommending that the complaint be dismissed in its entirety as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the General Counsel filed exceptions to the Intermediate Report.
and a supporting brief.'
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief filed by the General Counsel, the exceptions-
and brief filed by the Respondent, and the entire record in this case,
and hereby adopts such findings, conclusions, and recommendations of
the Trial Examiner as are consistent with our findings, conclusions,
and order, hereinafter set forth.
We disagree with the Trial Examiner's finding that the Respondent
has not discriminated against Grundstrom, Howland, and Price, within
the meaning of Section 8 (3) of the Act, as amended.
The contract between the Respondent and the Union required the
Respondent to employ all regular watchmen through the Union.' This
contract was in effect when the Respondent employed Grundstrom,
Howland, and Price on June 12, 14, and 23, 1947, respectively. These
watchmen were not employed through the Union; nor were they
' The Respondent excepted to the Trial Examiner 's finding that the Respondent had
notice that Phimister was no longer the Union 's representative at the time the employees
involved were placed on its pay roll .- we find it unnecessary to resolve the issue raised
by this exception in view of our determination of the case upon other grounds.
' As much of the contract as is pertinent to the issues in this case is set forth on page
1328 of the Intermediate Report.
85 N. L. R. B., No. 219.
1320
0
HAMMOND LUMBER COMPANY 1321
members of the Union when they were hired, having transferred
membership from the Union to the Seafarers in May 1947. The Re-
spondent discharged Grundstrom, Howland, and Price on August 4,.
1947, pursuant to the Union's demands, and replaced them with watch-
men supplied by the Union. The Trial Examiner found that the
contract, by operation of its automatic renewal clause, renewed itself
effective June 30, 1947, and was in full force and effect on August 4,.
1947, the date of the discharges. He further found that the Respondent
discharged Grundstrom, Howland, and Price "because they were not
members of the Union and were not hired in accordance with the terms
of a valid existing, collective bargaining agreement."
The General Counsel excepts to the findings of the Trial Examiner,
and contends (1) that the contract was not an agreement within the
meaning of the 8 (3) proviso; and (2) that if it was a valid agreement
within the protection of the proviso, it would not support the dis-
charge of these employees because (a) there was a valid termination of
the contract on June 30, 1947, and (b) even if the contract renewed
itself, the parties could not give effect to its terms pending a deter-
mination of the question concerning representation raised by the filing
of the Seafarers' petition.
We find it unnecessary to determine whether the contract renewed
itself and, if so, whether the parties could lawfully give effect to any
of its provisions. And assuming, without deciding, that the contract
was an "agreement" within the meaning of the 8 (3) proviso, we find,
nevertheless, that the discharges were discriminatory and in violation
of Section 8 (a) (3) of the Act for the reason hereinafter set forth.
The Trial Examiner found, and we agree, that Grundstrom, How-
land, and Price were discharged because they were not members of the
Union, either at the time of hiring or thereafter. No exceptions were
filed to this finding.3 In finding that the Respondent discharged these
employees to remedy a breach of the contract, the Trial Examiner in-
terpreted the contract as requiring the Respondent to hire only union
members through the Union and that, once hired, the watchmen must
remain members of the Union. The contract, however, did not re-
quire that only union members be hired through the Union, or that
the watchmen, once hired, be members of the Union ; it only required
the Respondent to hire its regular watchmen through the Union. De-
spite the absence of specific language to such effect, our dissenting
3 The Respondent contends that Grundstrom, Howland, and Price were placed on its
pay roll by fraud and that they did not, therefore, obtain bona fide employee statue:
Although we do not think that the record supports this contention, in any event it is no
defense, as these employees were not discharged because they were placed on the pay roll
through fraud, but because they were not members of the Union.
1322
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
colleague would interpret the contract as requiring union membership
as a condition of employment. However, we perceive no justification
for departing from the salutary principle enunciated in Matter of The
Iron Fireman Manufacturing Con any, 69 N. L. R. B. 19, 20, that "In
view of the stringent requirements of closed-shop provisions, it is not
too much to require that the parties thereto express the essentials of
such provisions in unmistakable language."
As the contract did not require that Grundstrom, Howland, and
Price be members of the Union, either at the time of hiring or there-
after, we find that their discharge, because they were not members of
the Union, was not protected by the contract and was therefore dis-
criminatory and in violation of Section 8 (a) (3) and 8 (a) (1) of the
Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in Section
I of the Intermediate Report, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
policies of the Act, as amended.
We have found that the Respondent discriminated in regard to the
hire and tenure of employment of Charles J. Grundstrom, Charles E.
Howland, and J. M. Price. In order to effectuate the purposes and
policies of the Act, as amended, we shall order that the Respondent
offer to Charles J. Grundstrom, Charles E. Howland, and J. M. Price,
immediate and full reinstatement to their former or substantially
equivalent positions,4 without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of pay they
may have suffered by reason of the discrimination against them, by
payment to each of them of a sum of money equal to the amount each
normally would have earned as wages during the period from August
'In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position when-
ever possible , but if such position is no longer in existence , then to a substantially equiva-
lent position ." Matter of The Chase National Bank of the City of New York , San Juan,
Puerto Rico , Branch, 65 N. L. R. B . 827, 829.
HAMMOND LUMBER COMPANY 1323
4, 1947, the date of his discharge, to the date of the Respondent's offer
of reinstatement, less his net earnings s during such period. In ac-
cordance with our practice the period from the date of the Interme-
diate Report to the date of the order herein will be excluded in com-
puting the amount of back pay to which these employees are entitled,
as the Trial Examiner did not recommend their reinstatement or an
award of back pay to them.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Seafarers, Guards and Watchmen Local No. 1, Seafarers Inter-
national Union of North America, is a labor organization within the
meaning of Section 2 (5) of the Act, as amended.
2. By. discriminating in regard to the hire and tenure of employ-
ment of Charles J. Grundstrom, Charles E. Howland, and J. M. Price,
and each of them, thereby discouraging membership in Seafarers,.
Guards and Watchmen Local No. 1, Seafarers International Union of
North America, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the
Act, as amended.
3. By said conduct the Respondent has interfered with, restrained,
and coerced its employees in the exercise of their rights guaranteed in
Section 7 of the Act, as amended, and has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act, as amended.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act, as amended.
ORDER
. Upon the entire record in the 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, Hammond Lum-
ber Company, Wilmington, California, and its officers, agents, suc-
cessors, and assigns shall :
5 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for his unlawful discharge and the conse-
quent necessity of his seeking employment elsewhere. Matter of Crossett Lumber Com-
pany, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county,
municipal, or other work-relief projects shall be considered as earnings. Republic SteeB
Corporation v. N. L. R. B., 311 U. S. 7.
:1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in Seafarers, Guards and Watchmen
Local No. 1, Seafarers International Union of North America, or any
-other labor organization of its employees, by' laying off, discharging,
or refusing to reinstate any of its employees, or by discriminating in
any other manner in regard to their hire or tenure of employment or
any term or condition of employment;
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right to.self-organization, to form
labor organizations, to join or assist the said Union, to bargain col-
lectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or all of
such activities, 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
.amended Act.
2. Take the following affirmative action which the Board finds will
.effectuate the policies of the Act :
(a) Offer Charles J. Grundstrom, Charles E. Howland, and J. M.
Price immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority and
.other rights and privileges;
(b) Make whole Charles J. Grundstrom, Charles E. Howland, and
J. M. Price, for any loss of pay they may have suffered by reason of
the Respondent's discrimination against them by payment to each of
.them of a sum of money equal to the amount which he normally would
have earned as wages during the periods from August 4, 1947, the
date of his discharge, to the date of the Intermediate Report herein,
and from the date of this Decision and Order to the date of the Re-
spondent's offer of reinstatement.
(c) Post immediately in conspicuous places at its offices and about
-its lumber yards in Wilmington, California, copies of the notice at-
tached hereto marked "Appendix A." G Copies %of such notice, to be
furnished by the Regional Director of the Twenty-first Region, shall,
after being duly signed by Respondent's representative, be posted by
the Respondent immediately upon receipt thereof and be maintained
by it for at least 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
IIn the event that this order is enforced by a decree of the United States Court of
Appeals, there shall be inserted before the words , "A DECISION AND ORDER," the
words, "A DECISION OF THE UNITED STATES COURT OF APPEALS ENFORCING."
HAMMOND LUMBER COMPANY 1325
that such notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Twenty-first Region (Los
.Angeles, California) in writing, within ten (10) days from the date of
.this Order, of the steps the Respondent has taken to comply herewith.
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 :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist SEAFARERS, GUARDS AND
WATCHMEN LOCAL No. 1, SEAFARERS INTERNATIONAL UNION OF
NORTH AMERICA, or any other labor organization, to bargain col-
lectively through representatives for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all of such activities, 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 Sec-
tion 8 (a) (3) of the amended Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and
privileges previously enjoyed and make them whole for any loss
of pay suffered as a result of the discrimination.
Charles J. Grundstrom
Charles E. Howland
J. M. Price
All our employees are free to become or remain members of the
:above-named union, or any other labor organization.
HAMMOND LUMBER COMPANY,
Employer.
By ---------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER MURDOCK, dissenting :
I cannot agree with the conclusion of my colleagues that the contract
between the Respondent and the Union did not require the employees
here involved to be members of the Union. I think that such a con-
clusion is completely unrealistic and ignores the practicalities of collec-
tive bargaining.
The majority admits that the contract in this case required the
Respondent to employ its regular watchmen "through" the Union.
I can conceive of no reason why the Union would have negotiated such
a provision had it not intended to bind the Respondent thereby to
operate its business with employees who were union adherents. So
far as the record indicates, the Respondent, under this contract, had
employed only members of the Union as regular watchmen before its
hire of the three employees with whom this proceeding is concerned.
When the Union informed the Respondent that these three watchmen
were not union members and demanded their discharge, the Respond-
ent complied with the Union's request, thereby indicating its under-
standing that the contract required employees to be members of the
Union. To my mind the only reasonable interpretation of the contract
provision that the Respondent employ "through" the Union-an inter-
pretation which is borne out by the conduct of the parties to the con-
tract-is that it required the Respondent to employ only members of
the Union. I therefore conclude that the Respondent's action in dis-
charging Grundstrom, Hovland, and Price was in accordance with
the terms of its collective-bargaining contract.
Under my view that the contract required the discharge of employees
who were not members of the Union, certain questions which the
majority finds it unnecessary to pass upon under its interpretation
of the contract-i.e., the status of the contract under Section 8 (a) (3)
of the Act and under the doctrine of the Midwest Piping case i-would
have to be resolved before a final determination could be reached in
this case. As it would not affect the result of the proceeding for nie
to set forth my opinion on these questions, I shall not do so.
INTERMEDIATE REPORT
AND
RECOMMENDED ORDER
George H. O'Brien, Esq ., of Los Angeles , Calif ., for the General Counsel.
Ivan G. McDaniel , Esq., by Glen R. Imanel , Esq., of Los Angeles , Calif., for
Respondent.
Arthur Garrett, Esq ., of Los Angeles , Calif., for the Seafarers.
'Matter of Midwest Piping and Supply Co., Inc., 63 N. L . R. B. 1060.
HAMMOND LUMBER COMPANY 1327
STATEMENT OF THE CASE
Upon a charge duly filed by Seafarers, Guards and Watchmen, Local No. 1,
Seafarers International Union of North America, herein called the Seafarers, the
General Counsel of the National Labor Relations Board, herein called respectively
the General Counsel and the Board, by the Regional Director of the Twenty-first
Region (Los Angeles, California) issued his complaint dated September 8, 1948,
against Hammond Lumber Company, herein called Respondent, alleging that
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 Relations Act, 49 Stat. 449 and of the corresponding sec-
tions of the National Labor Relations Act as amended, Public Law 101, 80th
Congress, First Session, effective August 22, 1947, herein called respectively the
Act and the amended Act. Copies of the complaint and the charge were duly
served upon Respondent, the Seafarers and Building Service Employees Inter-
national Union, Local 137, herein called the Union.'
With respect to unfair labor practices, the complaint alleged that Respondent,
on or about August 4, 1947, discharged Charles J. Grundstrom, Charles E. How-
land, and J. M. Price because of their membership in and activities on behalf
of the Seafarers, to discourage membership in the Seafarers and to encourage
membership in the Union and that the Respondent thereby interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed to them
by Section 7 of the Act and the amended Act, thereby engaging in unfair labor
practices within the meaning of Section 8 (1) and (3) of the Act and Section
8'(a) (1) and (3) of the amended Act.
In its answer dated September 16, 1948, the Respondent admitted certain of
the jurisdictional allegations in the complaint, denied others, denied that the
discharges complained of were accomplished fox' the reasons alleged, and alleged,
affirmatively, lack of jurisdiction on the part of the Board to entertain the
charge because the Seafarers had failed to comply with certain requirements
of the amended, Act.
Pursuant to notice, a hearing was held November 8, 9, 10, and 16, 1948, at
Los Angeles, California, before the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. All parties were represented by counsel, par-
ticipated in the hearing, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues. After the taking of evidence, motions to conform the pleadings to the
proof were granted without objection. Motions by Respondent to dismiss the
complaint in whole or in part were denied. All parties filed briefs with the
undersigned.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT 2
1. THE BUSINESS OF RESPONDENT
Hammond Lumber Company is a Delaware corporation engaged at Terminal
Island, Wilmington, California, in the purchase, sale, and distribution of build-
ing lumber. In the course and conduct of its business at the Terminal Island
Yard, Respondent purchases, annually, lumber, equipment, supplies, fuel, and
Although served as stated, the Union did not appear at the hearing.
2 Except as indicated these findings are based upon undisputed testimony.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lubricants valued at approximately $10,000,000. Approximately 80 percent of
such purchases are shipped to Respondent from points outside the State of Cali-
fornia. Respondent sells and distributes annually goods valued in excess of
$1.5,000,000, approximately 4 percent of which is shipped from Terminal Island to"
points outside the State of California.'
II. THE ORGANIZATIONS INVOLVED
Seafarers, Guards and Watchmen, Local No. 1, Seafarers International Union
of North America, and Building Service Employees International Union, Local.
137, are labor organizations affiliated with the American Federation of Labor,.
admitting to membership employees of Respondent.
III. THE ALLGED UNFAIR LABOR PRACTICES
Respondent has two integrated operations in the Los Angeles area, both under
the superintendency of James Smith. The Terminal Island Yard, which alone
is here involved, is directly supervised by Superintendent Frank Rickinger, Smith's.
subordinate. Negotiations with labor organizations of Respondent's employees.
are the responsibility of Smith.
For a number of years Respondent has had contractual relations with the
Union covering watchmen at Terminal Island. Normally, contracts were nego-
tiated each year between the Union and six lumber companies in the Los Angeles-
area, each of which signified its acceptance of the agreement by its signature
on the document.
On July 11, 1946, Respondent signed such an agreement with the Union as did
five other employers. The contract provided, inter alia:
Temporary Watchmen, commonly referred to as "Call Watchmen," em-
ployed prior to October 31, 1945, by the Employer, will be deemed as hired
through the Union. On and after that date, the Employer shall, so far as
possible, employ all Temporary Watchmen through the Union, and shall be-
required to employ Regular Watchmen through the Union.
This contract shall continue in effect, without change until June 30, 1947,.
and thereafter from year to year unless notice of cancellation be given by
one Party to the other in writing by or before the 1st day of June of the
year in which the change is sought.
No question was raised in this proceeding as to the majority status of the
Union at the time the contract was executed nor has the propriety of the bar-
gaining unit been placed directly in issue. The record indicates that the Union
constituted a pool of workers from which Respondent and the other employers.
secured watchmen as their needs arose. The method of dispatching watchmen
to the jobs was not described in detail.
Clearly, for a number of years all watchmen of the six contracting, companies„
including Respondent, have constituted a single bargaining unit. In the absence-
of a contrary contention, I find that a single unit embracing all watchmen
employees of the six companies is appropriate for the purposes of collective.
bargaining.
3 These findings are based upon allegations in the complaint admitted in Respondent's.
answer and upon data furnished to a representative of the General Counsel prior to hear-
ing by Respondent's general superintendent.
HAMMOND LUMBER COMPANY 1329'
In early April 1947, a majority of the membership of the Union voted to,
disaffilihte from the International and to affiliate with the Seafarers. About
100 of the 240 members of the Union refused to follow the seceding group. John:
Phimister, secretary-treasurer and business agent of the Union, followed the
majority and occupied the same offices in the Seafarer organization.
Phimister notified the Unions international organization of the act of seces-
sion but continued to occupy the same office space as theretofore. About May,
10, Ted Camp, secretary-treasurer of another local of the Union's International,
informed Phimister that under authority from the International he, Camp, had
been appointed trustee of the Union. Phimister surrendered the office space
to Camp and established an office for the Seafarers at another location.
On May 29, the Seafarers filed a petition' with the Board seeking certification
as bargaining representative for the Respondent's watchmen. By letter dated
June 2, the Board's Regional Director notified Respondent of this development.
By letter dated May 28, mailed May 29, and received by Respondent June 2, the-
Seafarers notified Respondent that the guards and watchmen in Respondent's.
employ were members of Seafarers and that a question concerning their repre-
sentation existed.
Under date of May 31, a letter to Respondent was prepared by counsel for the
Seafarers over the signature of Phimister, reading:
As you are probably aware, Building Service Employees International
Union, Building Service Employees, Port Watchmen, Local No. 137, voted to
dissolve on May 6, 1947.
Your guards and watchmen in the harbor area are now affiliated with,
Seafarers, Guards and Watchmen's Union, Local No. 1.
This is your notice of termination of your contract with Local 137.
Very truly yours,
J. R. PHIMIsvas,
Postoffice Box 1306, Harbor City.
Jack Marvin, a sometime member of the Union but on May 31 a member of the.
Seafarers, testified that he delivered this letter to the premises of Respondent on,
the afternoon of Saturday, May 31.
The delivery of the letter on May 31 is disputed.' However, it is my opinion
that nothing turns upon the incident. The General Counsel and the Seafarers..
contend that the letter was effective to accomplish its stated purpose-to termi-
nate the contract with the Union. I do not believe this contention to be sound.
The Seafarers did not succeed the Union as a party to the contract. Indeed, so far.
as the evidence shows, they did not succeed to any of the rights of that organiza-
tion. Phimister, having severed his connection with the Union earlier in May, and.
lacking specific authorization from that organization, could not act in its- behalf.
Those erstwhile members of the Union who voted to dissolve their organization
and to affiliate with the Seafarers accomplished no more than to relinquish their
membership in the Union and to establish a new relationship with the Seafarers.
The approximately 100 members remaining with the Union constituted a con--
* Case No. 21-R-4014.
"Respondent's offices were closed at the time of the alleged delivery. There is evidence,
however, from which I find that the letter came to the notice of Respondent's responsible
officials on Monday , June 2.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinning organization 6 The Union did not become defunct or even dormant. It
remained what it was-a functioning labor organization capable of discharging
Its obligations to its members and to those with whom it had contracted.?
The filing of the representation petition by the Seafarers on May 29, of course,
created a situation whereby the contract could not successfully be pleaded as a
bar to a determination of representatives. But it did no more. Alone, the peti-
tion could not prevent the renewal of the contract even though it became defeasible
during that part of its term when the Board was considering the petition. The
rights and obligations of the parties to the agreement remained unchanged.
Respondent continued under an obligation to hire watchmen through the Union.
The Seafarers' petition never resulted in an election.
C. J. Grundstrom, J. M. Price, and C. E. Howland, on June 12, 14, and 23, 1947,
respectively, were employed by Respondent. They constituted the entire force
of watchmen at the Terminal Island Yard. Each had relinquished his member-
ship in the Union before hire, had become a member of the Searfarers, and was
dispatched to the job by Phimister, acting for the Seafarers. At the time these
individuals were entered on the pay roll, Respondent had received notice from
Phimister of the schism in the Union and knew that Phimister was no longer
its representative. On June 16, Rickinger visited the office of the Seafarers,
discussed with Phimister the problem of securing watchmen, and gained addi-
tional information regarding the membership of its watchmen in the Seafarers.
On August 4, 1947, Grundstrom, Price, and Howland, at the request of the
Union, were discharged for failure to retain their membership in the Union.
Before this action was taken, Grundstrom and Price were requested by a rep-
resentative of the Union to pay their dues and threatened with discharge if
they failed to do so. Neither did. The record does not indicate that Howland was
offered such opportunity but it is clear that he had left the Union in May, and
had ceased paying dues to it.
Later in August the Union and Respondent agreed on higher wages for watch-
men.' The 1946 contract was not changed in any Other particular.
I find that the 1946 contract was renewed for another year on June 1, 1947,
when neither party gave notice of termination. The contract was, of course,
in effect during June 1947, when Grundstrom, Price, and Howland were hired
and when Respondent breached its agreement by hiring nonmembers of the
Union. When called upon to do so in August, it remedied this breach in the only
fashion possible-by discharging the three watchmen who had not fulfilled the
condition of hire, who had not been dispatched to the job by the Union.
I find that no unfair labor practice was thereby committed. The 1946 contract
was made with what must, under the evidence, be regarded as a majority rep-
resentative and was renewed on June 1, 1947, at a time when all watchmen
employed by Respondent were, so far as the record reveals, members of the
Union. The unit covered by the contract was appropriate. The three individuals
6 Article I of the Union's Constitution and By-Laws provides that the Union cannot
dissolve if seven members dissent from such action. As to the contention that the Sea-
farers were substituted as a party to the agreement and might therefore terminate it,
see hf and M Woodworking Co. v. N. L. R. B., 101 F. 2d 938 (C. A. 9).
See White Bros. Smelting Corp., 61 N. L. R. B. 340.
6 Counsel for Seafarers contends, in effect, that this circumstance is evidence that the
1946 contract was terminated on July 1, that the Union benefited by the termination to
the extent that it was enabled thereby to negotiate a higher wage scale, and that the Union
and Respondent are thus estopped from denying the termination. I find no merit in this
contention.
HAMMOND LUMBER COMPANY 1331
were discharged, not because of any dual union activity, but because they were
not members of the Union and were not hired in accordance with the terms of
a valid, existing, collective bargaining agreement.'
In consideration of all the evidence, I recommend therefore that the complaint
herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act and the amended Act.
2. Respondent, in effectuating the discharges of Charles J. Grundstrom, Charles
E. Howland, and J. M. Price, did not engage in unfair labor practices within the
meaning of the Act or the amended Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint against Hammond Lumber Company, Los
Angeles, California, be dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National Labor
Relations Board-Series 5, as amended August 18, 1948, any party may, within
twenty (20) days from the date of service of the order transferring the case to the
Board, pursuant to Section 203.45 of said Rules and Regulations, file with the
Board, Rochambeau Building, Washington 25, D. C., an original and six copies of
a statement in writing setting forth such exceptions to the Intermediate Report
and Recommended Order or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of the
Intermediate Report and Recommended Order. Immediately upon the filing of
such statement of exceptions and/or briefs, the party filing the same shall serve
a copy thereof upon each of the other parties. Statements of exceptions and
briefs shall designate by precise citation the portions of the record relied
upon and shall be legibly printed or mimeographed, and if mimeographed shall
be double spaced. Proof of service on the other parties of all papers filed with
the Board shall be promptly made as required by Section 203.85. As further pro-
vided in said Section 203.46 should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of service of the order transferring the case to the
Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
menided.order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 25th day of January 1949.
WALLACE E. RoYSTE$,
Trial Examiner.
9 See General Furniture Mfg. Co., 26 N. L. R. B. 74.
857829-50-vol. 85-85