Hawkeye Lumber Co.

National Labor Relations Board - Board Decisions

May 22, 1950

89 N.L.R.B. 1515 (N.L.R.B. 1950)

In the Matter of HAWKEYE LUMBER COMPANY and CHAUFFEURS,
TEAMSTERS AND HELPERS LOCAL UNION No. 238, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA, AFL
Case No. 18-CA-78.-Decided May 22,1950
DECISION
AND
ORDER
On December 21, 1949, Trial Examiner Charles L. Ferguson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and 8 (a) (5) of;,the
National Labor Relations Act as amended, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.,- There-
after, the Respondent filed exceptions and a brief to the Intermediate
Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Reynolds, and
Murdock].
. 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 Interme-
diate Report, the exceptions and brief, and the entire record in the
case. We find merit in the Respondent's contention that because the
operations of the Employer involved herein are essentially local in
character, the Board should exercise its discretion to decline juris-
diction.
'The Trial Examiner also found that the respondent . had not engaged in certain other
unfair labor practices alleged in the complaint and recommended that these allegations be
dismissed . The General Counsel did not file any exceptions to these findings and recom-
mendations.
89 NLRB No. 203.
1515
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent, an Iowa corporation, is engaged in the retail
lumber and building materials business and operates 22 yards in the
State of Iowa.2 The present proceeding concerns only the yard in
Iowa City. The value of all materials purchased in 1948 was $2,000,-
000, of which 70 percent or $1,400,000 worth was purchased outside
the State. The total sales for all the yards was $2,350,000. The
value of the materials allocated to the Iowa City yard was $175,000,
two-thirds of which, consisting of lumber, asphalt roofing, wood
shingles, paint, sash, and hardware, came from without the State.
The total sales of the Iowa yard, amounting to $233,000, were all made
to local customers and were not intended for out-of-State shipments.
On the basis of jurisdictional facts, which are more fully set forth
in the Intermediate Report, this case involves at most an impact on
commerce no greater and no less remote than was present in the recent
L,as Vegas Lumber Company case,3-in which we have recently declined
to,assert jurisdiction because of the essentially local character of the
operations involved. We find, therefore, that it would not effectuate
the purposes or policies of the Act to exercise jurisdiction in the
instant proceeding, and we shall therefore dismiss the complaint.
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 complaint issued herein be,
and it hereby is, dismissed.
MEMBER REYNOLDS, dissenting :
For reasons set forth in the dissenting opinion in Cordele Sash Door
cfi Lumber Company, 79 NLRB 578, I would assert jurisdiction in this
proceeding.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Erwin A. Peterson, for the General Counsel.
Mr. Neill Garrett, of Des Moines, Iowa, for the Respondent.
STATEMENT OF THE CASE
Upon a second amended charge filed June 13, 1949, by Chauffeurs, Teamsters
and Helpers Local Union No. 238, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, A. F. of L., herein called the union;
2 The Employer's yards are located in the following towns : Albia , Batavia, Bedford,
Cedar , Centerville, Creston, Fort Madison, Humeston, Iowa City, Lenox, Mount Ayr, Musca-
tine, Nichols, Oakville , Osceola , Oskaloosa , Ottumwa, Red Oak, Solon , Stockport , Wilton
Junction , and Winterset.
8 88 NLRB 9.
HAWKEYE LUMBER COMPANY 1517
the General Counsel of the National Labor Relations Board,' by the Regional
Director for the Eighteenth Region (Minneapolis, Minnesota), issued his corn-
plaint dated Tune 13, 1949, against the Hawkeye 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 (a) (1), (3),
and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act. Copies of the charge and the com-
plaint, and a notice of hearing were duly served upon the appropriate parties.
With respect to unfair labor practices, the complaint alleged in substance that
Respondent: (1) From "on or about September 18, 1948" refused to recognize
and bargain collectively with the union as the exclusive: representative of its
employees in an appropriate unit; (2) by its officers and agents, at various times,
"from on or about September 18, 1948" to the date of the issuance of the com-
plaint, interrogated its employees. "with respect to their union affiliation and
belief and warned" them "to refrain from engaging" in union activity; and (3)
on or about December 27, 1948, discharged, laid off, failed to provide work for
and terminated the employment of its employee, Charles Smith, and has since
refused and failed to reemploy him because "he and other employees joined and
.assisted,the union."
Repondent's answer, dated June 2:1, 1949, denied: (1) that the unit alleged
in the 'complaint constituted an appropriate unit for the purposes of collective
bargaining; (2) that the union "is or was the duly designated and qualified
bargaining representative of any" of its employees; or (3) that any "proper
request or demand was made upon it to bargain collectively with the union."
The answer further denied the commission of each and all of the unfair labor
practices alleged by the complaint.
Both by its answer and a motion to dismiss the complaint filed simultaneously
with the answer Respondent took the position that its business at its Iowa City,
Iowa, lumber and building materials yard, involved in this proceeding, "is not
subject to the provisions of the National Labor Relations Act . '. . nor to the
jurisdiction of the National Labor Relations Board or its General Counsel."
Pursuant to notice a hearing was-held at Iowa City, Iowa, on June 28 and 29,
1949, before the undersigned Trial Examiner, Charles L. Ferguson, who had been
duly designated by the Chief Trial Examiner to conduct the hearing. The
General Counsel and the Respondent were represented by counsel who partici-
pated in the hearing throughout. All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses and to introduce evidence
bearing upon the issues.
A ruling on Respondent's said motion to dismiss the complaint, which had
been referred to the Trial Examiner assigned to hear the case, was reserved.
This motion, directed as it was to the applicability of the Act and the juris-
diction of the Board under the facts with respect to commerce, is hereinafter
disposed of by the discussion and ruling on the question whether it would
effectuate the policies of the Act for the Board to assume and assert jurisdiction
in this instance.
At the close of all of the evidence a motion by the General Counsel to conform
the pleadings to the proof in matters not affecting the substance of the issues
3 The term General Counsel includes counsel appearing at the hearing on behalf of and
representing the General Counsel. The National Labor Relations Board is referred to herein
as the Board. The original charge was filed December 9, 1948, and a first amended charge
on February 17, 1949.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was granted without objection. Counsel were then afforded opportunity to
present oral argument. However, pursuant to an agreement between respective
counsel oral arguments were waived. Leave was granted the parties to file
briefs or proposed findings of fact and conclusions of law, or both, within 15
days after the close of the hearing. Subsequently, upon application of counsel
for Respondent, an extension of the time for filing same was granted. Counsel
for Respondent timely filed a brief and proposed findings and same have been
examined and considered. Rulings on the proposed findings are hereinafter
made. The General Counsel did not file a brief.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF PACT
1. THE. BUSINESS OF THE RESPONDENT
A. Nature and extent of respondent 's business
Respondent, an Iowa corporation, is engaged in the retail lumber and building
materials business . It operates 22 retail yards located in that number of towns
or small cities, all in the State of Iowa, with its main office at Oskaloosa, Iowa.
The approximate value of all stock, merchandise, and materials purchased in
1948 by the Respondent for retail sale at all its yards was $2,000,000, of which
about 70 percent was purchased from without the State of Iowa and transported
in interstate commerce to Respondent 's various yards in that State. Practically
all of its stock of lumber, asphalt roofing, and wood shingles are purchased
without the State. "A good share" of its paint stock, "about 70% of the sash
and door" stock, and "to a very large degree" fencing, barbed wire, and nails
are purchased "from outside the State." Hardware "is partially purchased
outside the State." The total sales volume for all of Respondent's yards in
1948 was $2,350,000. No shipments or deliveries of the merchandise sold were
made by Respondent outside the State nor was any merchandise sold for resale
or reshipment outside the State. Thus, it appears that sales were confined to
the various local communities within the State of Iowa where Respondent's
yards are located. It was estimated that 15 percent of Respondent's total and
aggregate sales for all of its yards was to local building construction contractors.
Only Respondent's business or yard at Iowa City, Iowa, is involved in this
proceeding. Rex V. Porter, Respondent's general manager, who testified at
length about these matters, stated that "the Iowa City yard operated as an
individual unit" and that the amount of respondent's total purchases during
the year 194S "allocated" to the Iowa City yard during that year was $175,000,
two-thirds of which were purchased and shipped from points "outside the State
of Iowa" and were the same types and kinds of merchandise as those enumerated
above as making up the out State purchases and shipments for all the yards. In
explaining how the percentage of outside purchases and shipments for the Iowa
City yard was slightly less than that for the combined purchases for all yards,
Porter said that at that yard "We get a large portion of their millwork from
Cedar Rapids (Iowa), we have a larger usage of brick and tile in Iowa City
than we do in the average yard and larger cement sales." Presumably brick,
tile, and cement were purchased within the State. The total sales in 1048
at the Iowa City yard "was a little in excess of $233,000" of which amount, it
was estimated, $81,000 was sold to building construction contractors with half
going into the construction of dwelling houses. All sales at the Iowa City yard
HAWKEYE LUMBER COMPANY 1519
were and are within the State sales to local customers such as local building
construction contractors, farmers, home owners, and other retail purchasers of
lumber and building materials, and none were destined for interstate shipment,
delivery, or resale.
Considering the Iowa City yard alone, it appears there has been and is a
continuous and substantial inflow of purchases from without the State, in
interstate commerce, of basic and essential stocks of lumber and building ma-
terials sold at that yard. As noted, all lumber; asphalt roofing, and wood
shingles, "a good share of the paint" stock, some of the sash, door and hard-
ware stocks and a large percentage of the nails sold at that yard come from
without the State. There were no out State sales, shipments, reshipments, or
deliveries.
B. Discussion of jurisdiction
In support of its motion to dismiss directed to jurisdiction Respondent contends
that the Act "is not applicable to respondent and its Iowa City yard" since all
merchandise at that yard, and at all of its yards, "is sold locally and within
the state of Iowa." This is based upon the premise that while there is admit-
tedly a substantial inflow from other States into the State of Iowa of merchandise
essential to respondent's business there is no outflow to other States and the
argument advanced seems to be that such importation alone does not constitute
"commerce" as that term is used and defined in the Act. Such contention is
not well founded for clearly the proceeding comes within the scope of the
Board's authority conferred by the Act and Respondent is engaged in "commerce"
at its Iowa City yard within the meaning of that term as it is used in the
Act, N. L. R. B. v. F'ainblatt, et al., 306 U. S. 601; N. L. R. B. v. Su1)wrban Lwnaber
Company, 121 F. 2d 829 (C. A. 3, 1941). The only question therefore which
arises in respect to jurisdiction relates not to the existence of the Board's power
but rather to the propriety of its exercise, that is, whether on the facts as to
the nature and extent of Respondent's business it would effectuate the policies
of the Act to assert jurisdiction in the instant case. In determining that ques-
tion I look to the policy of the Board, in respect to the assumption of juris-
diction found in its decisions in somewhat similar instances.
In Central Sash and Door Company, 77 NLRB 418, decided April 29, 1948, the
company was engaged "in the retailing and wholesaling of building supplies and
in the manufacture and sale of windows and doors" at Macon, Georgia. Total
sales during the year involved were $569,852, of which 87'/2 percent was retail
and 121/ percent wholesale. No sales were made to customers outside the State
of Georgia nor were any goods shipped out of that State. During the same period
the purchases were valued at $364,459, of which amount about 27 percent was
purchased from firms outside the State of Georgia. The Board found that the
company's "operations affect commerce within the meaning of the Act" and
asserted jurisdiction. Two members of the Board dissented and expressed the
opinion that in the exercise of its discretion the Board should "decline to assume
jurisdiction."
J. H. Patterson Company, 79 NLRB 355, was decided August 31, 1948. The
company was "engaged in the sale and distribution of building materials, coal
and fuel oil" from 6 yards located in 6 cities in the State of Illinois. Only its
Rockford, Illinois, yard was involved. During the year covered by the evidence
289 carloads of building materials, coal, and fuel oil were shipped by rail to that
yard. Of this number, 149 carloads, barely more than one-half, valued at $250,000
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"originated outside the State." In assuming jurisdiction the Board said : "The
close relationship between enterprises of this nature which distribute building
materials, and the building, construction industry, .over, which we have recently
asserted jurisdiction, logically compels the exercise of our jurisdiction in the in-
stant case." The same two members of the Board who had dissented to the exer-
cise of jurisdiction in the Central Sash and Door Company case, supra, again dis-
sented and observed that: "This small company's business is essentially local in
character. Although half the building materials, fuel oil and coal that pass
through this yard originates outside Illinois, all is sold, used and comes to rest
in the immediate vicinity of the city of Rockford." The dissent recognizes the
"power" of the Board "in this matter" but expresses the opinion that the "fact
that some of the materials which the Employer distributes may ultimately be
used in local building construction is not sufficient warrant" for asserting juris-
diction.
In Akron Brick and Block Company, 79 NLRB 1253, decided October 4, 1948, the
Company operated a plant near Akron, Ohio, where it was "engaged in the manu-
facture of cement blocks" which were "sold at wholesale to building supply deal-
ers in the Akron area." During the preceding year it had "purchased raw mate-
rials, machinery and equipment valued at approximately $270,000, of which
approximately $29,000 represented purchases from outside the State of Ohio."
In asserting jurisdiction the Board followed the Patterson case, supra, using sub-
stantially the same language as I have above quoted from that decision. In this
instance the two members of the Board who had dissented in the Central Sash
and Door and Patterson cases announced that they regarded "themselves as
bound . . . by the action of a majority of the full Board in the Patterson case."
The facts in Edgar- P. False, Inc., 86 NLRB 394, decided October 5, 1949, were,
that the company, with its only place of business at New Iberia, Louisiana, con-
ducted "a wholesale and retail building materials and hardware supply business"
and manufactured "windows, doors and frames," that for the period to which
the evidence as to purchases related, it purchased raw materials and supplies
amounting to $179,983, of which amount $69,668 represented purchases made out-
side the State of Louisiana, and that all sales were made within that State and
none were destined for interstate shipment. The Board asserted jurisdiction.
Respondent presented testimony that there were three other retail lumber and
building materials yards doing business in Iowa City with the ownership and
operation of none of which Respondent was or is in any way connected and that
one of these yards is larger and does a greater volume of business than respond-
ent's yard. It is claimed that in the event of an interruption or cessation of
business at Respondent's yard these other yards are ready, able, and willing to
meet all demands of that area and "to take over all of the business" of Respond-
ent's yard and thus such interruption or cessation of business at respondent's
yard would not necessarily affect the out-of-State flow of lumber and
building materials into Iowa City. This of course is on the assumption that
any labor dispute or strife which might interrupt or interfere with the operation
of Respondent's yard would not affect the operations of the other yards and that
they would be isolated and immune therefrom which is of doubtful factual
validity. It will be remembered that the evidence discloses that the union's goal
was the organization of all of the lumber yards in Iowa City. ' But it is not at
all material on the question of commerce and jurisdiction that Respondent's
customers might possibly be able to obtain lumber and building materials from
other yards in the event a labor dispute should interrupt or•stop the interstate
HAWKEYE LUMBER COMPANY 1521
flow of such merchandise to Respondent's yard. The purpose of the Act is to
protect and foster interstate commerce and avoid industrial strife which would
interfere with it, therefore, the Board's jurisdiction can attach before actual
industrial strife materializes to in any way obstruct the normal flow of that
commerce, N. L. R. B. v. Bradford Dyeing Association, 310 U. S. 318, 326. How-
ever, as has been pointed out, the Board's decisions hold that the exercise or
assertion of that jurisdiction in a particular case or type of cases is a matter
of administrative discretion.
C. Conclusion as to jurisdiction
The facts in respect to the nature and extent of respondent's business con-
sidered in the light of the Board's policy as represented by the cases cited and
reviewed, supra, I am constrained to hold that, at its Iowa City yard, Respondent
is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act
and that it would effectuate the policies of the Act to assert jurisdiction in the
instant case. Respondent's motion to dismiss the complaint is therefore denied.
H. THE LABOR ORGANIZATION INVOLVED
It was stipulated and upon such stipulation as well as the evidence bearing
on that phase of the case, I find that Chauffeurs, Teamsters and Helpers Local
Union No. 238, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, affiliated with the American Federation of Labor,
herein called the union, is a labor organization within the meaning ,of Section
2 (5) of the Act, admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of the events constituting the bases of the alleged
unfair labor practices
1. Background
At all times herein mentioned Rex V. Porter was Respondent's general man-
ager with over-all management authority of its 22 retail lumber and building
materials yards located respectively in 22 towns and small cities in the State of
Iowa. He had served continuously in that capacity for 15 years. Porter's office
was at Respondent's main office at Oskaloosa, Iowa. George T. Briggs frequently
referred to in the evidence as the company auditor described his position in this
way: They call me an auditor. Actually I am more of a supervisor and super-
intendent." His office whs also at the Respondent's main office and both as audi
for and in his supervisory capacity Briggs made regular weekly visits to a group
of Respondent's yards, which included the Iowa City yard, checking and advising
with the local yard managers and visited such yards at other times as some
situation arose requiring his attention. At all of the times material herein Carl
.Schwaigert was manager of the Iowa City yard. He commenced working for the
Respondent as a truck driver at that yard, later was made what he called "yard
foreman" and on May 1, ,1946, became manager which position he has since
occupied.
2. Facts relating mostly to the alleged refusal to bargain
There is little conflict in the testimony as to the decisive or controlling facts
and where discrepancies having any material bearing on the issues appear they
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will be noted and findings made. Except as otherwise specifically noted the
events hereinafter related occurred during the year 1948.
Charles T. Smith, who it is alleged in the complaint respondent discrimina-
torily discharged, laid off, failed to provide work for and has since refused and
failed to reemploy, had worked "about 9 months" in 1925 at Respondent's Iowa
City yard. Later he accepted employment with the University of Iowa and
prior to the date in October 1947, when Smith was last employed by Respondent
he had worked continuously for the University of Iowa for 18 years, for 17
years of that time he worked in the Hygiene Laboratory of the State Department
of Health. He had become dissatisfied with his "situation at the health labora-
tories . . . dissatisfied about working inside" and "wanted to get outside."
Schwaigert and Smith were close friends from childhood and as children had
lived in the same "neighborhood." Early in October 1947 Schwaigert met Smith
to discuss a business matter in no way connected with employment. Schwaigert
testified that at that time it was difficult to hire any competent help" at the
yard, that during the conversation with Smith he chanced to mention the employ-
ment situation and that thereupon Smith said, "How about me going to work
down there," that he thought Smith "was kidding me, knowing how long he had
worked for the State" but Smith said he was "not kidding" and he (Schwaigert)
told Smith to "come down and talk it over." Smith later came to the yard and
told Schwaigert he was dissatisfied with his situation at the laboratories, that
he wanted outside work, and would like to go to work there and Schwaigert
referred him to Briggs. Smith then was interviewed by Briggs, signed an appli-
cation and "about a week after that was told he could go to work when he was
ready." It appears that the salary and other terms of employment were agreed
upon by Briggs and Smith. "About the middle of October" 1947, Smith com-
menced work as "yardman" at a salary of $185 a month, the same compensation
he had received at the laboratories. This statement of the employment of Smith
in October 1947 and how it came about is corroborated and confirmed by Smith
in substantially every particular except he said that during the conversation with
Schwaigert concerning the business matter lie mentioned to Schwaigert that
"I would like to get away from the laboratory and Carl (Schwaigert) suggested
I come to work for him, he said he needed it yardman." If this slight differ-
ence could have any weight one way or another on the issues involved, I am
inclined to credit Schwaigert's version. He said he had no thought that Smith
would be interested in making a change as he had worked at the laboratory so
long and that when Smith made the suggestion he thought Smith was "kidding."
Smith testified that when he went to work as yardman in October 1947 there
were, excluding Schwaigert, the manager, and the office employee or employees,
four employees, including himself, the others being Clarence Mahanna, a yard
helper, Clayton Colbert, a truck driver, and Tom Staley, whose work was not
described.
The union had previously tried unsuccessfully to organize all of the retail
lumber and building materials yards in Iowa City. In September 1948 Harry J.
Wilford, an agent and representative of the union, his position with the union
being that of "Trustee and Business Representative," contacted Respondent's
yardmen, truck drivers, and helpers during "noon hours and after work." At
that time there were five employees, excluding the manager and office employees ;
Smith, yardman; Mahanna, yard helper ; William Ford and Charles Dennis, truck
drivers ; and Joe Ryan, a helper around the yard and on the trucks. Three,
Smith, Dennis, and Ryan met and conferred with Wilford, by prearrangement, at
a tavern the night or evening of September 14 about organizing a union at
Respondent's yard. During this conference Wilford and the three employees were
HAWKEYE LUMBER COMPANY 1523
seated in a booth. In the course of this conference Wilford explained the provi-
sions of the union's contract with the lumber yards at Cedar Rapids, Iowa, and
each of the three employees, constituting a majority of the Respondent's yard
and truck men and helpers at the Iowa City yard, signed union membership
cards by the terms of which the union was designated as his "representative for
the purposes of collective bargaining." This provision is printed on the face
of the card above the signature.
An incident involving Schwaigert, about which Wilford, Smith, and Dennis,
as witnesses for the General Counsel testified, occurred during this tavern
conference. While the three employees were seated with Wilford in a corner
booth discussing the union, Schwaigert entered the tavern. Smith gave per..
baps the fullest account of what occurred. He said that when Schwaigert
','cause in, we invited him to sit down there but there was not enough room in
our booth and he sat in the adjoining booth and ordered a bottle of beer * * *
he sat there for a few minutes," that then someone "in another booth across"
called to Schwaigert and "he went over and sat down with that fellow for
a few minutes and then got up and went out." Smith said there was nothing
unusual about Schwaigert coming into the tavern and that all of them (the
men working at Respondent's yard) "frequented that tavern." Schwaigert's
version of the incident very closely parallels that of Smith. Schwaigert said
that he was "in the habit of going in there," that he was a customer there and
went there frequently and "most of the boys in the yard are" customers of
the tavern which was near the yard, that it was " about a quarter to six" in
the evening when he went into the tavern to get a glass of beer, that he did not
know that Smith, Dennis, and Ryan were there when he went in though he
assumed Smith was as he noticed Smith's car parked out front as he entered.
There are no circumstances in evidence indicating that Schwaigert knew or had
any reason to think these men had arranged to meet at this public tavern on
this occasion or that he came to the tavern for any purpose other than his
customary bottle of beer. Surveillance was not alleged and had it been this
evidence is wholly insufficient to sustain such an allegation. So far as knowl-
edge of union activity it is of no moment. On the following day Wilford fully
advised the management of developments to that time and one or another
of the union representatives thereafter kept Respondent informed of same. I
attach no significance to the incident.
The following morning, September 15, Wilford called Porter, Respondent's
general manager, at the main office at Oskaloosa, by long distance telephone,
and told Porter that he (Wilford) was a representative of Local 238 at Cedar
Rapids, that that union had jurisdiction also of Iowa City, that "three or a
majority of the employees" at the Iowa City yard "had signed applications
for membership" in the union and that "we would like to meet with him to
discuss representation and the negotiation of a contract for wages and working
conditions covering" the employees at that yard "at the earliest possible time."
Porter stated that that was the first information he had about the matter,
that he would take it up with the company's auditor and Schwaigert and "agreed
to get in touch with" Wilford and "call back," when he had made "a check"
with the auditor and Schwaigert. Thereafter on the same day Briggs, the
auditor, went to see Schwaigert and asked him, as Schwaigert stated it, "if I
knew our men had signed applications to join the union" and "I told him of
seeing them in the tavern the night before and that was all I knew about."
.On September 17, 3 days after the tavern meeting at which Dennis, Smith,
and Ryan had signed the union membership cards, Mahatma, the yard helper,
889227-51-vol. 89-97
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Ford, a truck driver, who bad not attended the tavern conference, signed
cards, thus, as of that date all of Respondent's yardmen, truck drivers, and
helpers had signed application for membership cards designating the union
as their "representative for the purposes of collective bargaining." Wilford,
whose headquarters were at the union's office at Cedar Rapids, came to Iowa
City regularly on Tuesday of each week and at other times as some matter re-
quired his presence there. The tavern meeting was on Tuesday, September 14.
On the following Tuesday, September 21, Wilford came to Iowa City and the
Mahanna and Ford cards were delivered to him. Not having heard from Porter
during the week which had passed since his telephone conversation with Porter,
at which time Porter had promised to get in touch with him, Wilford called on
Schwaigert. As related by Schwaigert, Wilford said: "that the boys had joined
the union, that he had contacted Mr. Porter, and wanted to know if I had heard
from Mr. Porter" and "I told him I had not." Schwaigert said there was no
question in his mind "at that time the boys had joined the union."
On the same day (September 21) Wilford again, and for the second time, called
Porter by long distance telephone. As Wilford related this conversation, Porter
said that he had "checked with the Iowa City yard" and had learned "that the
men had joined the union," and that "he thought it was alright to join" a
fraternal, labor or any other such organization but upon Wilford's request for a
meeting with him to "discuss the negotiation of a contract covering working con-
ditions and wages for the employees," Porter said "he was not interested at
all in a contract" and would not agree to meet with Wilford or union representa-
tives for that purpose. Wilford then urged Respondent's obligation "under the
Act" to recognize the union and bargain with it, Porter said he "would check with
his legal counsel and get in touch with us." Porter said that "to the best of my
recollection" he received only one telephone call from Wilford, the call on Sep-
tember 15. However, I credit and accept Wilford's testimony concerning the
second telephone call and that the substance of the conversation on that occasion
was as he related it. It coincides with his call that day on Schwaigert inquiring
if Schwaigert had received any word from Porter about the matter and the con-
versation related by Wilford is in keeping with Porter's whole attitude as mani-
fested by his testimony at the hearing. Further, based upon my observation of
Wilford as a witness and the fact that Porter did not deny the conversation,
merely that to the best of his recollection he had only one telephone conversation
with Wilford, I cannot dismiss Wilford's testimony as being wholly concocted
testimony about something that never happened.
Although Porter had told Wilford that after conferring with his "legal counsel"
he would "get in touch" with him, no communication of any kind was received
from Porter and thereafter on a date not definitely fixed by either Wilford or
Porter other than as being early in October and which by approximation from
certain bits of testimony appears to have been about October 6, Wilford called
on Porter at his (Porter's) office in Oskaloosa. There is no substantial or mate-
rial variance between the testimony of Porter and Wilford about their conference
on this occasion. Wilford gave a much fuller and more detailed statement of
their conversation, and, as I recall, Porter did not deny Wilford's testimony in
any material particular. I have, therefore, drawn largely upon Wilford's testi-
mony as to what occurred. Wilford said, that he "tried" to explain the provisions
of the Act, "the right of his (Porter's) employees to join a labor organization, to
choose their own bargaining agent and the employer's responsibility to deal with
the organization chosen by the men," that "I asked Mr. Porter if there was any
question in his mind as to whether we did represent the men" and told him "if
HAWKEYE LUMBER COMPANY 1525
there was I had with me the signed applications of the employees," that he then
handed the five union application-for-membership cards to Porter, who "looked
at them, inspected them and returned them to me," and that Porter did not ques-
tion the majority status of the union and observed that he (Porter) had already
been informed "by the Iowa City manager that the men had joined the union."
In this connection Wilford said, "I told him we would like to have them negotiate
a union contract covering working conditions" and that Porter again stated that
the Company "had no objection to the men joining the union if they wanted to ...
or the Moose or Elks or any other organization but so far as any contract for
them covering wages and working conditions he wasn't at all interested." While
Porter persisted in his position previously taken that he was not "interested"
in a contract or negotiating a contract with the union he did again say he "would
take it up with his legal counsel" and "get in touch" with Wilford or the Union.
The five membership cards which Wilford submitted to Porter were put in
evidence as General Counsel's Exhibits 5 to 9, inclusive. Concerning his ex-
amination of these cards Porter said : "Mr. Wilford said that he had proof that
our men had signed up with the union-his union, and showed me for examina-
tion the application cards which have been offered here as Exhibits. I saw they
were application cards, looked at the names, and did not read the cards other
than the top of the card saying that they were application cards. I did not read
any fine print." This talk about fine print is part of Respondent's pretended
ignorance that the employees had designated the union as their collective bargain-
ing representative, and the claim that Porter was never informed of that. Not
that it is material, except as it may bear somewhat on the sincerity of Respond-
ent's position in that respect, but an examination of these cards discloses that
the so-called fine print containing the representation designation comprises four
lines in the center of the card printed in clear black type and, other than the
heading in larger type and the designation of the spaces which follow for name,
age, address, and signature of the applicant, constitutes all the printed matter
appearing on the card. Upon even the most cursory glance along this part of the
card the words "choose and designate as my representative" register.
Sometime after October 10 and before October 13, the union having had no
communication of any kind from Porter following Wilford's call on Porter,
James D. White, secretary and treasurer and business representative of the
union called Porter on the long distance telephone. There seems to be a. dis-
crepancy between the testimony of White and that of Wilford about when this
call was made. Wilford seems to place it as having been before he called on
Porter but White says it was after and a follow up of Wilford's conference with
Porter. In enumerating the telephone calls it may be that it was his own
second telcp':o;le call to Porter to which Wilford alluded as being made shortly
before he went to see Porter instead of White's call. The circumstances and
Porter's testimony corroborated White's version as to the approximate time
of the call.
White testified that during the telephone conversation he told Porter that
"When his people signed the applications we were designated as bargaining
agent" and that "we wanted to meet for the purpose of negotiating or attempting
to negotiate a contract," and that Porter replied that "he was not interested in
meeting with the union" and "was not interested in a contract" with the union
and that was all Porter would say about the matter. Confronted with this ada-
mant position White told Porter that unless he would agree to meet with the
union representative "We have had no alternative but to file under the National
Labor Relations Act charges for refusing to bargain with the union." To this
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Porter replied "Go ahead" and White stated that thereafter on October 13 he
did file such charge. There is some confusion in the record about this. The
first charge found in the record in this case is shown as having been filed on
December 9. However, some action in reference to this matter was taken by
White on October 13 as he referred to what he called an affidavit relating to
Respondent's alleged refusal to bargain which he executed on that date.
Except in one particular Porter's version of the conversation does not negate
or contradict White's somewhat fuller statement. Porter said that after identify-
ing himself White "told me that he represented the union, that the men were
members of his union and that he wanted to negotiate a contract" and "I told
him we weren't interested," and that White did not at any time in that phone
conversation say that the employees at the Iowa City yard had designated the
union as the bargaining representative to negotiate a contract for them.
S. Evidence in support of the allegation of interference, restraint, and coercion
The complaint alleged that Respondent, by its officers and agents interrogated
its employees "with respect to their union affiliation and belief and warned its
employees to refrain from engaging in concerted activities. . .
None of the employees called as witnesses testified to any interrogation by
any officer, agent, or representative of Respondent. Smith testified that he and
Schwaigert "had talked about unions in general, the good points and bad'points.
Carl (Schwaigert) never said anything that I know of that was against the
union or anything bad about it," that "We just talked about unions in general,
their activities and benefits," and that these talks occurred both "in the office
and away from the office." When asked, "how did the talks start," Smith
answered "Well, I would say I started it."
Dennis, one of the three employees who signed a card at the meeting with
Wilford at the tavern the evening of September 14, testified that after he had
signed the card Wilford gave him a union button bearing the number of the
local and the letters A F of L and told him to wear it on his cap, that he affixed
the button to the cap which he wore to work and that "within a few days" after
the September 14 meeting Schwaigert called him into the office and told him
"to take that button off because we weren't union and not to wear it until further
notice" whereupon he removed the button and ceased wearing it. Schwaigert
admitted this incident. He said Dennis came into the office to find out what
work he (Schwaigert) had for him and that noticing the button he told Dennis
he "would like for him to take that button off," that he (Schwaigert) "had
nothing against the union but we hadn't signed up as yet and that was all
there was to it."
The latter part of September, Ryan, one of the three men who signed a card in
the tavern on September 14 voluntarily quit his employment at Respondent's
yard and went to another job, In October Cecil O. Bontrager was hired as a
replacement. He worked as a helper principally on trucks but also in the yard.
Bontrager was interviewed by Schwaigert concerning employment about the mid-
dle of October. He testified that during the interview Schwaigert made a re-
mark about the union which he (Bontrager) stated in three somewhat different
ways: (1) "they had only one thing to contend with at the present time and
that was the union"; (2) "this union was the main thing they had to contend
with"; and (3) "we got one draw back here and it's the union." Whatever or
which ever the remark was, Bontrager said it was the "sum total" of what
Schwaigert said on that occasion about the union and that Schwaigert never
talked to him at any other time about the union. Bontrager further testified that
HAWKEYE LUMBER COMPANY 1527
when Schwaigert made the remark he (Bontrager) said: "I am on the fence. I
believe in organized labor but I don't believe in strikes." At the conclusion of
the interview Schwaigert told Bontrager to report for work the following Mon-
day which he did. He was contacted about joining the union "in the first week
or ten days" after he commenced work at which time he signed an application for
membership card. The card is dated October 26.
Conclusion as to the allegation of interference, restraint, and coercion
Clearly the evidence concerning talks between Smith and Schwaigert about
unions does not support the alleged interrogation nor does it disclose any state-
ment or implication by Schwaigert that would tend in any way to support the
allegation of interference, restraint, and coercion. According to Smith's testi-
mony these talks were mere general conversations between friends about a
current topic and Smith stated that he instigated the conversations.
Nor do I construe Schwaigert's remark or observation made to Bontrager at
the time Bontrager was hired to the effect, whichever way it was framed, that he
(Schwaigert) considered the union a "draw back'-" or that the Union was the
"main thing they (the Company) had to contend with," as being in the nature of
an interrogation or as being a statement carrying a threatening implication
affecting the hiring of Bontrager although it did result in prompting a declara-
tion by Bontrager that he believed "in organized labor" but did not "believe in
strikes."
I find, however, that Schwaigert's action in calling Dennis to the office and
ordering him to remove the union button and not to wear it "until further notice"
because the Company "had not signed up as yet" constituted interference, re-
straint, and coercion within the meaning of Section 8 (a) (1) of the Act. The
display of the button was a part of the union or concerted activity in the par-
ticipation in which Dennis was protected by the Act. The order was in the nature
of a warning and carried an implication that left Dennis the alternative of re-
moving the button and ceasing to display it or risk disciplinary action by a
refusal to obey. "The right of employees to wear union insignia at work has long
been recognized as a reasonable and legitimate form of union activity" and any
curtailment of that right by the employer "is clearly violative of the Act," Repub-
lic Aviation Corporation, 51 NLRB 1186, 1188; Armour and Cainpany, S NLRB
1100; and Republic Aviation Corporation v. N. L. R. B., 324 U. S. 793. In National
Container Corporation, 57 NLRB 565, 584, an order to all employees wearing union
steward buttons to remove same was held to be interference with, restraint, and
coercion of the employees in the exercise of the rights guaranteed in Section 7 of
the Act.
4. The alleged discriminatory layoff or discharge of Charles T. Smith
The circumstances attending the hiring of Smith have been related also that
he and Schwaigert were personal friends of long standing, in fact since child-
hood. As stated, when hired in October 1947, Smith was paid a salary of $185
per month. In August 1948 he took up with Briggs the matter of an increase
in salary to $200 a month which was granted. Smith's work was satisfactory.
He was the highest paid man in the yardmen, truck drivers, and helpers group.
In December 1948, the two truck drivers, Dennis and Ford, were paid $44 a week ;
the wage of Bontrager, helper on trucks and also in the yard, does not appear ;
the yard helper Mahanna was paid $37.50 a week.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Porter and Schwaigert said that by December 1948 there was a "seasonal let
down" or "slump" in the work and the business and that in that month Briggs
notified Schwaigert that there would have to be a curtailment of expenses at the
Iowa City yard and that some of the men would have to be laid off. On December
27 Briggs came to Iowa City and told Schwaigert it had been decided to lay off
two men, that Smith, the highest paid man, had been selected as one to be laid
off and directed that Schwaigert select the second man. Briggs then talked to
Smith and advised him that he was to be laid off as of "the first of the year"
(1.949). Smith related this conversation as follows: "Mr. Briggs said: `Charles
I am going to have to lay you off the first of the year.' I asked him why and he
said, `We do not have much work around the yard and its a slack time of the
year.' I said, `I am older than some of the other help we have around here and
I can drive a truck.' He said, `You weren't hired to drive a truck.' " At another
point he said Briggs told him he was being laid off because of the "seasonal slump"
and that "it wasn't a discharge, it was a lay off." About this, Schwaigert said
Briggs told Smith "he (Briggs) would have to lay him off because of the general
slump in business" and that the "lay off was seasonal and Smith could come
back later."
The layoff was to become effective at the close of business on Friday, Decem-
ber 31. Smith worked through the day of December 27 (Monday), on which
Briggs notified him of the layoff, but did not report for work or come to the
yard the remaining 4 workdays of the year nor make any explanation of his
failure to do so. He did not ask for nor was he granted leave of absence nor
did he advise Schwaigert of his intention to absent himself from work during
the remaining 4 days. He just quit work at the close of business December 27.
He was, however, paid in full for the month of December.
After Briggs had notified Smith of the layoff, Schwaigert selected Dennis,
one of the two truck drivers, as the second man to be laid off because they did
not need two drivers at that time and for reasons mentioned he considered Ford,
the other truck driver, more suitable for retention on that job. When Schwai-
gert called Dennis in and notified him that he was to be laid off the first of the
year Dennis asked Schwaigert if he knew that Bontrager, the helper, intended
to quit the first of the year. Schwaigert said that he did not and that if Bon-
trager quit and Dennis desired to do so he could stay on in Bontrager's place.
Bontrager did quit and Dennis stayed on.
On January 1, 1949, Smith commenced work at the Sorensen Feed Company in
Iowa City at a salary of $50 a week, which was at the rate of $200 more a year
than he received from Respondent. He has been employed there continuously
since and at the time of the hearing had become a partner in the business.
With the layoff of Smith and the departure of Bontrager on January 1,
1949, the yard and trucking employees were reduced to three which was the
number of such employees working at the yard at the time Smith was employed
in October 1947. Dennis soon became dissatisfied because he was put to work
"around the yard . . . doing yard work instead of driving" while Ford was
permitted to drive the one truck that was kept in use. It will not contribute
to the solution of this matter to go into the merits of Dennis' grievance. Suffice
it to say that because Schwaigert considered Ford the more reliable driver and
thought Ford "knew the country better," that is the roads, and where customers,
both in the city and surrounding country, lived, he assigned the driving job
to Ford. Dennis admitted having had some slight accidents with the truck
he had driven about which Schwaigert had complained. "Around January 15,"
HAWKEYE LUMBER COMPANY 1529
1949, Dennis quit. He did not give Schwaigert any advance notice of his inten-
tion to quit but "just didn't come to work that morning" and during the day
called Schwaigert by telephone and told him he had quit. The union thereupon
filed an amended charge alleging discrimination against Dennis, presumably
because as between the two truck drivers Ford and Dennis, both members of
the union, Schwaigert had selected Ford to drive the one truck kept in use
and had assigned Dennis mostly to yard work. However, when the second
amended charge was filed the charge of discrimination against Dennis was
omitted. Within a few days after Dennis quit Schwaigert employed a Mr.
Fitzpatrick in his place. The force of yard men and truck drivers seem to have
continued at three until some time late in May 1949 when one Volden was hired
and thereafter to the time of hearing numbered four. Neither Fitzpatrick nor
Volden was assigned to the work Smith had done and seemed to have been used
interchangeably in the yard and on the trucks as the work necessitated.
At the time Smith was laid off Mahanna, the yard helper, a man 70 years of
age, had been working in that yard and at that job for 8 years. He was still
working at the time of the hearing. Schwaigert said while Mahanna could not
do as much work as a younger man "he has been with us a long time and knows
the yard and is familiar with the stock," that he could not accurately figure
prices and "write up tickets" and that since Smith, who had done much of that
kind of work, left some one in the yard did that or some one would go from
the office "for that purpose." In May 1949 Ford, who was still working as a
truck driver at the time of the hearing in June 1949, received an increase in pay
to $50 a week, which Schwaigert said was "in the normal course of business."
At the time of the hearing Fitzpatrick and Volden were each receiving a wage
of $44 a week and Mahanna the $37.50 a week which he had been paid for
some time.
Although Respondent's testimony was to the effect that it was customary, and
.not unusual, to make some layoffs during the winter months, it appeared
layoffs had not been made at this yard during the preceding winter of 1947.
Porter and Schwaigert explained that until late in 1947 the yard was located
on leased premises, that. in that year the Company acquired a site and built a
new and larger yard, that it was "completely new construction," that in the fall
and winter of 1947 the business and the stock on hand was moved from the old
location to the new yard and a large amount of new stock and merchandise was
purchased and shipped to the new yard, that at that time a railroad spur had
had not been extended to the new yard and there was "quite a bit of hauling
from trackage at the freight yards to get the material in," that, thus, during
the fall and winter of 1947-1948 there was much "extra work" at the new
yard "getting it in shape and the merchandise and material arranged" and that
more men were needed "than were normally carried at that time of the year,"
The testimony was that since Smith was laid off, respondent has not at any
time recalled him to work, and has not offered him employment at his former or
an equivalent position or any other job. Smith said he had talked to Schwaigert
"a lot" since the layoff but that nothing was ever said by either of them about
him returning to work for Respondent. Schwaigert was asked if anything was
ever done about offering Smith reemployment. He stated that he was fully
informed about where Smith went to work after the layoff and what he was
doing and what he was making and that he did not think Smith would be or was
any longer even interested in a job at Respondent's yard. If Smith was at the
time of the hearing or at any other time after December 27, 1948, interested in
returning to work for Respondent, as a witness he certainly did not give any
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indication of such interest. Schwaigert admitted that for the reasons stated
it never occurred to him that Smith would even be interested in the job at the
time he hired Fitzpatrick and Volden to work interchangeably as truck drivers
and yard helpers, each at $44 a week. When Schwaigert was asked why, when
Ford, the truck driver, was given a raise to $50 a week in May 1949, he did not
offer that job to Smith, he replied, as is obvious, that to do that he would have
had to discharge Ford.
It will be remembered that without leave of absence, without having any leave
due him, without saying anything to Schwaigert or Briggs about his intention
to do so, Smith quit and abandoned his employment at the close of business on
Monday, December 27, 1948, the day he was notified he was to be laid off on
January 1, 1949. The Respondent paid Smith in full for the month of December.
That payment, however, had been made on December 15. Smith and one office
employee were paid a monthly salary, with payments on the 15th and the last
day of each calendar month. It was customary in December of each year to pay
employees whose compensation was on a monthly basis that month's salary in
full on the 15th of the month. Therefore, it can hardly be said that by thus
paying the December salary in full, Respondent condoned or waived Smith's
conduct in abandoning his employment on December 27.
There is no evidence , direct or circumstantial tending to indicate that Smith
was any more active in promoting the union than any of the other employees,
all of whom joined.
Conclusion on alleged discriminatory layoff or discharge of Smith
The burden of proof was with the General Counsel to sustain the alleged dis-
crimination . Suspicion, speculation, and surmise do not suffice. The violation
alleged must be established by a preponderance of the credible evidence. In my
opinion, this was not done. There is no direct and positive evidence of such
discrimination and I am unable to discover any such chain of consistent and
interlocking circumstances as would warrant a reasonable inference to that
effect. Indeed, as I view it, the evidence, as a whole, and the reasonable infer-
ences therefrom, preponderate to support respondent's claim that Smith, the
highest paid man at the time, was laid off for the reasons stated, that the layoff
was not activated by discriminatory motives, and that Smith was not later
offered either of the less paying combination helper-truck driver jobs for which
Fitzpatrick and Volden were hired, or any other job, because Schwaigert believed
that Smith, who had moved immediately into a better position than that he had
held with Respondent and had become established as a partner in the business,
would not be interested in returning to work for Respondent, as was the fact,
and not because of any discriminatory motivation arising out of Smith's con-
nection with the union. I shall, therefore, recommend that the allegation of the
complaint that Smith was discriminated against in violation of Section 8 (a) (3)
be dismissed.
5. The refusal to bargain
a. The appropriate unit
The complaint alleges that all employees of Respondent at its Iowa City yard,
excluding office and supervisory employees, constitute a unit for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act. Such
a unit would be composed of all yard employees, truck drivers, and helpers.
While Respondent's answer denies generally this allegation of the complaint,
HAWKEYE LUMBER COMPANY 1531
no question as to the appropriateness of such a unit was made by Respondent at
the hearing or in its brief.
There was a reference by Sehwaigert, at one point in his testimony, to Smith
as yard foreman but Sehwaigert for the most part, Smith himself and the
other witnesses, who referred to the matter at all, spoke of Smith merely as a
yardman. Smith said: "I was a yardman." He received orders covering mate-
rials to be delivered from Schwaigert or the office, loaded the trucks and dis-
patched them. He said he also unloaded the carloads of lumber and materials
"coming into the yard" and arranged same at the proper storage places in the
yard. In this he was assisted by both the truck drivers and helpers as the
work required. Smith also at times waited on customers who came to the yard
to purchase materials. He was required to get a chauffeur's license as he
sometimes drove a truck and made deliveries. He.had no authority whatsoever
about hiring, firing, promotions, layoffs, grievances, rewards, or discipline and
worked as did the other employees of the yardmen, truck drivers, and helpers
group under the direct supervision of Schwaigert who made the work assign-
ments and transfers of all the employees. There is no indication that Smith
had or exercised authority other than in a routine way, pursuant to Schwai-
gert's orders, in directing the work of other employees. He did not have any
of the attributes of a superviser as that term is defined in the Act and would
not for that reason be excluded from the proposed unit.
The fact that Smith as yardman was paid on a monthly salary basis and the
other employees in the proposed unit, by the week, is not a distinguishing factor.
The Board will look not to the mode of payment but to the general interests,
duties and nature of the work and working conditions of employees in order
to resolve the unit question, Kansas City Light and Power Co., 75 NLRB 609;
Wilson and Co., 81 NLRB 501. While Mahanna as a helper worked in the
yard unloading lumber and materials shipped to the yard and in placing and
arranging same and in. loading materials on trucks for delivery to customers, the
other helper did similar yard work and also worked as a helper on the trucks.
The truck drivers also assisted in the loading and unloading work and when
the hauling or trucking work was slack, the one or the other or both not so.
engaged worked in or about the yard at any work there was to do. On the
other hand when the hauling or trucking required the use of more than two
trucks, Smith would drive a third truck. Thus, functionally, the proposed
unit constituted a closely interrelated and integrated operation. The employees
worked at the same place under the same working conditions and personnel poli-
cies, had the same working hours, and were under the same immediate super-
vision.
I find, therefore, that all of Respondent's employees at its Iowa City, Iowa,
yard, including all yardmen, truck drivers, and helpers, and excluding all and
any office and clerical employees and supervisors, have such an identity of in-
terest in the terms and conditions of their employment as permits their inclusion
in the same unit for the purpose of collective bargaining and constitute a unit
appropriate for such purpose within the meaning of Section 9 (b) of the Act.
b. Representation by the union of a majority within the appropriate unit
The testimony of Wilford, Dennis, Smith, and Bontrager and the membership
application cards in evidence show conclusively that as of September 14, 1948,
three of the five employees within the appropriate unit joined the union, that
thereafter on September 17, the two remaining employees within the unit joined
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union, and that on October 26, 1948, Bontrager who replaced one of the
employees (Ryan), who had joined on September 14, also joined the union. Thus,
I find that on September 15, 1948, when the union first contacted Respondent's
manager, Porter, and requested recognition as the collective bargaining repre-
sentative of the employees within the unit and that he negotiate with it on the
terms of a contract covering their employment, and at all times thereafter when
such requests were repeated, renewed and made upon Porter, and at all times
material herein, the union was the duly designated bargaining representative of
all or a majority of the employees in the appropriate unit and that, therefore, by
virtue of Section 9 (a) of the Act, the union became and was at all such times,
the exclusive bargaining representative of all the employees in said unit for the
purposes of collective bargaining with respect to wages, hours, and other terms
and conditions of employment.
c. Respondent's refusal to recognize and bargain with the union
Respondent's manager, Porter, admitted in effect, if not expressly, and the
evidence conclusively shows that practically from the beginning he was informed
and knew that a majority, and in fact, almost as soon as it occurred, all of the
employees at the Iowa City yard had joined the union. Wilford informed him on
September 15 that a majority of the employees had joined. On September 21,
after all the men had signed the application-for-membership cards, the last sign-
ing being September 17, Porter told Wilford that he (Porter) had learned that
the men had joined the union. During the Wilford-Porter conference, early in
October, Porter "inspected" the five applications-for-membership cards and
"looked at the names." Between October 10 and 13, White, in the conversation
with Porter, reiterated that the employees had joined the union. Further, Porter
did not at any time question the fact, which he well knew, that a majority of the
employees and in the course of events all of them, had signed the application-
for-membership cards and joined the union. Indeed on cross-examination Porter
specifically admitted that he did not question the "majority status" of the union
but said that he refused to negotiate with the union on the terms of a contract
"because we had no proof that they (the union) had been designated" as the
collective bargaining representative of the employees.
Porter's last cited statement represents in brief one of the defenses, upon which
Respondent relies, to the allegation of the complaint that Respondent refused to
bargain with the union on the terms of a contract. In that connection and as
supporting such claim Porter testified that "no one either from the employees or
the union, or anyone else, ever communicated with" him or "stated" to him or
"showed" him any "evidence of the designation of this union as the bargaining
representative of the employees in the yard at Iowa City." Porter's claim that
he had no idea, and did not know, that by joining the union the employees thereby
designated it as their bargaining representative and his pretended belief that
membership in the union was of no more significance than membership in some
purely fraternal, social, or religious organization overtaxes credulity. Porter is
a mature, experienced, and intelligent business executive who for 15 years or
more has served as General Manager of Respondent's chain of lumber and build-
ing materials yards. There had been prior attempts by this same union to organ-
ize this yard and all such yards in Iowa City. The yards at Cedar Rapids, Iowa,
and certain other Iowa cities and towns had been unionized. This was not
Porter's first experience with a union and I have no doubt whatsoever that he
well knew and understood the legal effect, resulting from a majority of the
employees joining the union, I can not, therefore, accord weight to the claim that
HAWKEYE LUMBER COMPANY 1533
Porter did not know and understand that the union had been designated by a
majority, and in fact all, of the employees as their collective bargaining repre-
sentative . It has been held that the mere signing of an application for member-
ship in the union "implies authority to bargain ." Consolidated Machine Tool
Corporation , 67 NLRB 737, 738, 739; 163 F. 2d 376; Joy Silk Mills, Inc., 85 NLRB
1263 . In the Consolidated Machine Tool case , supra , the application for member-
ship cards contained no express designation of the union as bargaining repre-
sentative.
During the period the union was demanding recognition and that Porter meet
and negotiate with it on the terms of a contract; Porter did not at any time
demand or request a showing or proof that the employees had designated the
union as their bargaining representative or assign the failure of the union to
make such showing as a reason for his refusal to bargain with it. The facts are,
as will presently be developed , that Porter was informed and must have known
that all of the employees had designated the union as their bargaining repre-
sentative.
If, however , it be accepted that Porter was so naive as to believe that member-
ship in a union had no more or different significance than membership in some
purely social or fraternal organization and that he did not know the facts of
life as they exist today in respect to labor unions their aims, purposes, and objec-
tives, nevertheless , the testimony shows, and I accept and credit same , that the
union representatives not only fully advised Porter that at first a majority then
all of the employees had not only signed the application for membership cards but
also that in doing so they had designated the union as the bargaining representa-
tive and in that connection submitted to him, as he admits, for his examination
the cards containing such designation which cards he "inspected ." Further, the
union representatives in conversations and in conference with Porter stated and
spelled out the obligation and duty of the Respondent, under the Act, in view of
the circumstances , to bargain with the union on a contract . In the conversation
of September 21, Wilford urged upon Porter Respondent 's obligation , under the
Act, to recognize, meet and bargain with the union in respect to a contract. At
the Wilford-Porter conference , Wilford "explained" to Porter that all of the men
had joined the union , as Porter already knew , that they had chosen the union
as their "bargaining agent," and the employer 's resultant obligation , under the
Act, to bargain with the union on 'the terms of a contract . Wilford then told
Porter, in substance , that if he ( Porter ) had "any question in his mind whether"
the union "did represent the men " that such authority was established by the ap-
plication for membership cards containing such designation , which cards Wilford
thereupon submitted to Porter who "inspected" and "examined" them. Follow-
ing this White, in the conversation with Porter between October 10 and 13, told
Porter that "when his (Porter 's) people signed the applications we (the union)
were designated as their bargaining agent." This line of testimony contradicts
Porter ' s testimony above set out to the effect that no one at any time advised or
told him, or showed him any evidence , that the employees had designated the
union as their bargaining representative but in view of all the circumstances
and the unreality of Porter 's position and his admission that he examined the
application for membership cards, I am constrained , as already stated, to accept
and credit the testimony of Wilford and White.
In reply to every request or demand upon Porter by Wilford and White to
meet with 'representatives of the union for the purpose of negotiating or bar-
gaining with respect to a contract concerning wages, hours, and other terms and
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment, Porter stated without qualification that he was "not
interested at all in a contract" or that he "was not interested in meeting with the
union" and "was not interested in a contract" with the union. The pleas, re-
quests, and demands upon Porter to meet and bargain culminated and were re-
jected with unqualified finality in White's conversation with Porter when Porter
unreservedly declared that he "was not interested in meeting with the union"
or in negotiating with the union on the terms of a contract. White then declared
that unless Porter would change his attitude and agree to meet and bargain
with the union he (White) would have no alternative but to file a charge, under
the Act, for refusal to bargain. Porter signified his resolve to stand fast upon
his refusal to meet and bargain with the union by inviting White to "Go ahead."
In his testimony at the hearing Porter said that by "not interested" he meant he
would not negotiate with the union with respect to a contract, in other words a
plain, unqualified, categorical refusal to bargain.
A further, and what Porter denominated as "a secondary" reason, advanced
for the refusal to bargain was that Porter "felt" that he "didn't have to bargain
(with the union) because" Respondent "was not subject to the Act," it being
Porter's "opinion" that "it was the intent of the lawmakers to make this law
applicable to sales rather than purchases." Here, I think, is the real explana-
tion for the consistent and persistent refusal to bargain and not that Porter did
not know, was not informed and it was not demonstrated to him, that the union
had been chosen or designated as the bargaining representative of the yardmen,
truck drivers, and helpers group. He acted on the premise that the Act did not
apply to the Iowa City yard and elected to take whatever risk was inherent in
this concept of the law. An erroneous theory, interpretation, or application of
the law does not justify or excuse Porter's refusal to carry out the obligations
imposed by the Act, General Motors Corporation 81 NLRB 779.
Conclusion on refusal to bargain
I find that from and after September 21, 1948, the date of Wilford's second
telephone conversation with Porter, Respondent refused to meet, confer, and
bargain with the union with respect to wages, hours, and other terms and con-
ditions of employment of the employees, within the appropriate unit herein
found, at its Iowa City, Iowa, yard, and thereby violated, and has since con-
tinued in violation of, Section 8 (a) (1) and (5) of the Act.
B. Respondent's "Requests for Findings"
The 13 requests for findings of fact submitted by Respondent are, in substance
and effect, disposed of by my foregoing findings and conclusions. In conformity
therewith requests numbered 6 and 9 are granted, requests numbered 1, 2, 3, 4,
5, 8, 10, 12, and 13 are denied, and requests numbered 7 and 11 are granted in
part and denied in part.
IV. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in Section III, above, occurring
in connection with its operations described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and such of them as have been found to constitute unfair labor
practices tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
HAWKEYE LUMBER COMPANY 1535
V. THE REMEDY
Having found that Respondent, Hawkeye Lumber Company, has engaged- in
certain unfair labor practices, it will be recommended that Respondent cease and
desist therefrom and that it take certain affirmative action designed to effectuate
the policies of the Act.
Having also found that at all times material herein the union represented a
majority of the employees in the appropriate unit and that on September 21,
1948, Respondent refused, and since said date has continuously refused, to bar-
gain collectively with the union, it will be recommended that, upon request,
respondent bargain collectively with the union.
Having found that Respondent interfered with, coerced, and restrained its
employees in the exercise of their right to participate in union activity by order-
ing them not to wear or display union buttons or insignia, it will be recom-
mended that it cease and desist therefrom.
As the evidence does not establish that Respondent discriminatorily discharged
or laid off and failed to reemploy Charles Smith it will be recommended that that
allegation of the complaint be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The respondent, Hawkeye Lumber Company, is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union No. 238, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. of L., is a labor organization within the meaning of Section 2 (5) of the
Act.
3. All employees at Respondent's Iowa City, Iowa, yard including all yardmen,
truck drivers, and helpers, and excluding all office and clerical employees and
all supervisors, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
4. On September 14, 1948, Chauffeurs, Teamsters and Helpers Local Union
No. 238, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, A. F. of L., became, and at all times since has been, the
exclusive representative of all the employees in the appropriate unit for the pur-
poses of collective bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing to bargain, on September 21, 1948, and thereafter, with Chauf-
feurs, Teamsters and Helpers Local Union No. 238, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L.,
as the exclusive representative of the employees in the appropriate unit, Re-
spondent has engaged in, and is engaging in, unfair labor practices within the
meaning of Section 8 (a) (1) and (5) of the Act.
6. By ordering employees to remove and cease wearing union buttons or insig-
nia and warning them not to wear or display same, Respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act and has thereby violated Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The evidence is insufficient to sustain the allegation of the complaint that
Respondent discriminatorily discharged or laid off Charles Smith and thereafter
discriminatorily failed and refused to reemploy him.
'1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent, Hawkeye
Lumber Company, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing, upon request, to bargain collectively with Chauffeurs, Teamsters,
and Helpers Local Union No. 238, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, A. F. of L., as the exclusive repre-
sentative of all its employees, including yardmen, truck drivers, and helpers,
at its Iowa City, Iowa, yard, but excluding all office and clerical employees and
supervisors as defined by the Act;
(b) In any manner interfering with the efforts of Chauffeurs, Teamsters, and
Helpers Local Union No. 238, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, A. F. of L., to bargain collectively
with it in behalf o`f the employees in the aforesaid appropriate unit ;
. (c) Its prohibition against its employees wearing or displaying union buttons
or other union insignia and threats or warnings, express or implied, to its em-
ployees in that connection.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Upon request, bargain collectively with Chauffeurs, Teamsters and Helpers
Local Union No. 238, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, A. F. of L., as the exclusive representative of
all employees in the unit herein found to be appropriate, with respect to rates of
.pay, wages, hours of employment, and other terms and conditions of employment
and, if an agreement is reached, embody it in a written and signed contract ;
(b) Post at its lumber and building materials yard at Iowa City, Iowa, copies
of the notice attached hereto marked Appendix A. Copies of said notice, to be
furnished by the Regional Director for the Eighteenth Region, shall, after being
duly signed by the Respondent or its representative, be posted by the Respondent
immediately upon receipt thereof and maintained by it 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;
(c) Notify the Regional Director for the Eighteenth Region, in writing, within
twenty (20) days from the date of the receipt of the Intermediate Report and
Recommended Order, what steps the respondent has taken to comply herewith.
It is further recommended that, unless the Respondent shall, within twenty
(20) days from the date of the receipt of this Intermediate Report and Recom-
mended Order, notify said Regional Director in writing that it will comply with
the foregoing recommendations, the National Labor Relations Board issue an
order requiring the Respondent to take such action.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board 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, 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 (including 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
EHAWKEYE LUMBER COMPANY 1537
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 provided 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-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions , and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 21st day of December 1949.
CHARLES L. FERGUSON,
Trial Examiner.
APPENDIX A
NoTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 prohibit, or interfere with, our employees wearing or dis-
playing union buttons, or other union insignia, or threaten them, either
expressly or impliedly, with dismissal or other disciplinary action for doing
so, or in any like or similar manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization and to partici-
pate therein.
WE WILL BARGAIN collectively upon request with CHAUFFEURS, TEAMSTERS,
AND HELPERS LOCAL UNION No. 238, INTERNATIONAL BROTHERHOOD OF TEAM-
STLT,S, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L.,
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and if an agreement is
reached, embody such agreement in a written and signed contract. The
bargaining unit is:
All yardmen, truck drivers, and helpers, at our Iowa City, Iowa,
lumber and building materials yard. All office and clerical employees
and supervisors are excluded from said unit.
WE WILL NOT in any manner interfere with the efforts of the above-named
union to bargain collectively with us, or refuse to bargain with said union
as the exclusive representative of the employees in the bargaining unit set
forth above.
HAWKEYE LUMBER COMPANY,
Employer.
Dated ----------------------------- By ---------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.